University of Miami Law Review University of Miami Law Review

Volume 53 Number 4 Article 2

7-1-1999

Identity, Democracy, Communicative Power, Inter/National Labor Identity, Democracy, Communicative Power, Inter/National Labor

Rights and the Evolution of LatCrit Theory and Community Rights and the Evolution of LatCrit Theory and Community

Elizabeth M. Iglesias University of Miami School of Law, eiglesia@law.miami.edu

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Recommended Citation Recommended Citation Elizabeth M. Iglesias, Identity, Democracy, Communicative Power, Inter/National Labor Rights and the Evolution of LatCrit Theory and Community, 53 U. Miami L. Rev. 575 (1999) Available at: https://repository.law.miami.edu/umlr/vol53/iss4/2

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University of Miami Law ReviewVOLUME 53 JULY 1999 NUMBER 4

FOREWORD

Identity, Democracy, Communicative Power,Inter/National Labor Rights and the Evolution

of LatCrit Theory and Community

ELIZABETH M. IGLESIAS *

INTRODUCTION

This symposium marks and celebrates the proceedings of the LAT-

CRIT THIRD ANNUAL CONFERENCE, which took place on Miami Beach inMay 1998. Preceded by LATCRIT I in La Joya and LATCRIT II in SanAntonio, the LATCRIT III gathering marked a watershed event in theevolution of the LatCrit movement, both as the most recent interventionin outsider jurisprudence and as a community of scholars and activists.I

* Professor of Law and Co-Director of the Center for Hispanic and Caribbean Legal

Studies, University of Miami School of Law. Thanks to Sam Thompson for unfailing support,both financial and personal; to the University of Miami Law Review and the Texas Hispanic LawJournal; and particularly to the two University of Miami Law Review editors-in-chief, Tad Dee,for his good faith and, Sabrina Ferris, for seeing this project through at the end. Thanks also toMax Castro, Drucilla Cornell, Kevin Johnson, Guadalupe Luna, Athena Mutua, Dorothy Roberts,Celina Romany, Greg Stewart and Robert Westley, for discussions that have in one way oranother enhanced the thoughts expressed in this Foreword. Special thanks to my friend andcolleague, Frank Valdes, for friendship, inspiration and solidarity.

I. LatCrit scholarship has virtually exploded in the last three years. In addition to thepublished proceedings of LATCRIT I, see Symposium, LatCrit Theory: Naming and Launching aNew Discourse of Critical Legal Scholarship, 2 HARv. LATINO L. REV. 1 (1997) and LATCRIT I,see Symposium, Difference, Solidarity and Law: Building Latinalo Communities ThroughLatCrit Theory, 19 CHICANo-LATINo L. REV. 1 (1998), LatCrit scholars have also produced afirst-ever symposium exploring major issues in international law and international human rightsfrom a critical race perspective. See Symposium, International Law, Human Rights and LatCritTheory, 28 U. MIAMI INTER-AM. L. REV. 1 (1997). LatCrit scholarship has also been published ina stand-alone volume, see Symposium, LatCrit Theory, Latinas/os and the Law, 85 CAL. L. REV.1087 (1997), 10 LA RAZA L. J. 1 (1998). For proceedings of the gathering of Latina/o LawProfessors that gave birth to the LatCrit project, see Colloquium, Representing LatinaloCommunities: Critical Race Theory and Practice, 9 LA RAzA L. J.S 1 (1996). For a particularly

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If LATCRIT I reflected the enthusiasm of a new found commonality andunprecedented dialogue among a diverse group of scholars comingtogether for a first time, LATCRIT II demonstrated the profound chal-lenges facing any movement seriously committed to exploring and trans-forming the realities of inter- and intra group injustices from an anti-essentialist and anti-subordination perspective. If LATCRIT I markedthe excitement of a first encounter and the enthusiasm of a party, LAT-

CRIT II demonstrated the speed with which any party can end. In a sud-den crash or steady line of departures, a party based on suppositions ofsolidarity and feelings of community can quickly unravel when con-fronted with substantive difference. When things "get too heavy," partiestend to dwindle and disperse.2

From this perspective, LATCRIT III was a watershed momentbecause it marked a key act of continuity and perseverence despite rup-tures and disruptions. Viewed in hindsight, this act of continuity was adefinitive moment in the survival of the LatCrit movement as a commu-nity of scholars and collective political intellectual project.3 Viewedagainst the backdrop of prior LATCRIT conferences, LATCRIT III alsooffers a welcomed opportunity to reflect anew upon the objectives andmethods of our community-building efforts. If LATCRIT II counsels theneed to remain ever-vigilant lest we be confused, seduced and ultimately

insightful overview of the purposes and commitments of the LatCrit movement, see FranciscoValdes, Under Construction: LatCrit Consciousness, Community and Theory, 85 CAL. L. REV.1087, 93-96 (1997), 10 LA RAZA 1, 7-10 (1998) [hereinafter Valdes, Under Construction]. Forproceedings of the LatCrit IV conference, see Symposium, Rotating Centers, ExpandingFrontiers: LatCrit Theory and Marginal Intersections, 33 U.C. DAVis L. REV. (forthcoming2000).

2. For a sense of the substantive issues that triggered the eruptions at LatCrit II, see Elvia R.Arriola, Foreword: March!, 19 CHICANO-LATINO L. REV. 1, 26-7 (1998) [hereinafter Arriola,Foreword: March!]; Nancy K. Ota, Falling From Grace: A Meditation of LatCrit II, 19CHICANO-LATINO L. REV. 437 (1998); Reynaldo Valencia, On Being an Out Catholic:Contextualizing the Role of Religion at LatCrit 11, 19 CHICANO-LATINO L. REV. 449 (1998); EmilyFowler, Disturbing the Peace, 19 CHICANO-LATINO L. REV 479 (1998); Margaret E. Montoya,Religious Rituals and LatCrit Theorizing, 19 CHICANO-LATINO L. REV 417 (1998); Elizabeth M.Iglesias & Francisco Valdes, Afterword: Religion, Gender, Sexuality, Race and Class inCoalitional Theory: A Critical and Self-Critical Analysis of LatCrit Social Justice Agendas, 19U.C.L.A. CHICANO-LATINO L, REV. 503, 539 (1998) (declining to engage in retrospectiveaccounts of events, in favor of reflecting instead on the substantive issues raised by the clash ofperspectives).

3. The eruptions at LatCrit II raised substantial doubts about the continuity of the project.Communities may form spontaneously, but they do not evolve automatically, particularly notcommunities of choice and will that are little more than an imagined act of solidarity amongstpeople separated by so many differences. The organization of appropriate venues for performingcommunity is critical to its evolution, but this also does not happen automatically. It falls toparticular individuals at specific points in time to create the venues that enable community. Thusthese communities are as fragile as the individuals upon whose energy, initiative and good willthey depend. LatCrit II drained us.

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betrayed by the human tendency to seek community in the sentimental-ity and pseudo-security of sameness, the intellectual and politicaladvances made at LATCRIT III show us the substantial pay-offs to begained by resisting the impulse to seek or settle for sentimentalist com-munities. By this I mean communities where solidarity is more animage conjured through superficial feelings of identity and hence ofmomentary closeness, rather than a lived commitment, in solidarity, torelentlessly reveal and steadfastly dismantle relations of dominance andsubordination that subvert the potential for authentic human sharing andconnection - not just outside, but also within the LatCrit communitywe aspire to construct.'

To recognize the limited life expectancy of sentimentalist commu-nities is to take a first step down a long and difficult path that challengesus, at every instance, to seek affirmatively and self-consciously to pro-duce something different in our midst. That difference is a communityof scholars and activists that can intellectually engage, politically negoti-ate and collectively absorb the kinds of internal controversies and exter-nal assaults that have, in other contexts, shattered communities built onthe fragile bonds of sentimental feeling, strategic alliance, individualcareerism or simple self-interest, however mutual such interests may besaid to be - in short, on any bond other than an inter-subjective com-mitment to seek and manifest objective justice in a caring and carefulmanner.

5

The excellent work and important advances, the conceptual break-throughs, the interpersonal relationships and political solidarities thatwere further strengthened or newly born at LATCRIT III are, indeed, sub-stantively significant - as reflected in the proceedings of this sympo-sium. The fact that none of these things might have ever seen the lightof day, at least not in their current configurations and certainly not, asthey are now, embedded in and enhanced by our memories of the sharedcommunity and collegiality that made LATCRIT III such an enliveningexperience - this fact should give reason to pause. Indeed, the achieve-ments of LATCR1T III offer ample evidence that LatCrit community-

4. See Elvia R. Arriola, LatCrit Theory, International Human Rights, Popular Culture, andthe Faces of Dispair in INS Raids, 28 U. MIAMI INTER-Am. L. REv. 245 (1996-97) [hereinafterArriola, INS Raids] (emphasizing the importance of LatCrit community building); Arriola,Forward: March!, supra note 2 (same).

5. See Elizabeth M. Iglesias, The Inter-Subjectivity of Objective Justice: A Theory andPraxisfor Constructing LatCrit Coalitions, 2 HARV. LATINO L. REV. 467-71 (1997); Elizabeth M.Iglesias, Structures of Subordination: Women of Color at the Intersection of Title VII and theNLRA. NOT!, 28 HARV. C.R.-C.L. L. REV. 395, 476-78 (1993) [hereinafter Iglesias, Structures ofSubordination] (the intersubjectivity of equals: moral imperative and institutional blueprint); id.at 493 n.324 (intra-feminist solidarity must be based on more than "touchy-feely" sentiments); id.at 475-78 (solidarity among women of color based on justice, not sentimentality).

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building must walk a careful path between the tendencies to rely, on theone hand, on the feel-good emotions of superficial identifications and,on the other hand, the tendency toward a kind of packing behavior thatis sometimes indulged because it appears to enable spontaneous, thoughfleeting and often problematic, alliances to converge around a slash-and-burn, hold-no-prisoners, hypercritical attack upon some unfortunate andoften unsuspecting target. Neither tendency serves the purposes of acommunity determined to foster for the long-haul a collaborative pro-ject that continuously enables ever-more demanding engagements in thesort of substantive critical analysis that was the aspiration and, to anunprecedented degree, the achievement of LATCRIT III.

LATCRIT III definitively demonstrated that even highly controver-sial topics and proposals can advance our intellectual development andstrengthen our political and solidaristic commitments if organized andactually conducted in a respectful and inclusive manner. Thus, whilethere was significant controversy generated by a programmed event pro-posing to launch a jurisprudential intervention styled "BlackCrit theory"as an experimental way of centering the particularities of Black Latina/oand Caribbean peoples in and against the Black/White paradigm,6 thispre-event controversy did not disrupt the conference, but was insteadidentified and negotiated through extensive substantive discussions, con-ducted late into the evening, in good-faith and mutual concern to resolvethe misconceptions that might otherwise disrupt the next day's event.The payoff was that rather than an explosive emotional disruption fol-lowed by the scrambling (of some) to mediate the hurt feelings andunnecessary misunderstandings that routinely follow such explosions,we had a very fruitful discussion that has since spawned substantialadvances by raising important questions about the relationship betweenLatCrit and other critical jurisprudential movements, most notably Criti-cal Race Theory,7 and about the particularities of Black experiences andthe significance of those particularities to the LatCrit project.8

6. See infra note 105 and accompanying text (discussing objectives and drawing lessonsfrom the LATCRIT III focus group discussion entitled From Critical Race Theory to LatCrit toBlackCrit? Exploring Critical Race Theory Beyond and Within the Black/White Paradigm, see<http://nersp.nerdc.ufl.edu/-malavet/latcrit/archives/lciii.htm>).

7. See, e.g., Stephanie L. Phillips, The Convergence of the Critical Race Theory Workshopwith LatCrit Theory: A History, 53 U. MIAI L. REV. 1247 (1999); Francisco Valdes, Afterword:Theorizing "OutCrit" Theories: Coalitional Method and comparative JurisprudentialExperience-RaceCrits, QueerCrits and LatCrits, 53 U. MIAMI L. REV. 1265 (1999) [hereinafterValdes, "OutCrit" Theories].

8. See, e.g., Dorothy E. Roberts, BlackCrit Theory and the Problem of Essentialism, 53 U.MIA I L. REV. 855 (1999) [hereinafter Roberts, BlackCrit Theory]; Athena Mutua, ShiftingBottoms and Rotating Centers: Reflections on LatCrit III and the Black/White Paradigm, 53 U.MIAMI L. REV. 1177 (1999); see also The Meanings and Particularities of Blackness in LatinaloCommunities, LATCRIT IV SUBSTANTIVE PROGRAM OUTLINE (reflecting the intellectual growth

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There is no doubt that solidarity, understood as an anti-essentialistcommitment to inter and intra-group justice, presents continual chal-lenges and demands tremendous work. This work is not always fun. Atthe same time, there is no question that LATCRIT III was fun. The con-ference was graced with the sunny springtime beauty, the pastel coloredsounds and Caribbean skies that make Miami beaches a tropical paradisefor wealthy tourists and gave us an opportunity to enjoy each other'scompany and to share some sensual displacements amid much privilegeand luxury, even as we confronted the daunting challenges of our work.In fact, the conference was a lot of fun, and the fun we had was apositive energy in our efforts to build community across our differ-ences.9 Thus, in myriad ways, LatCrit III demonstrated that the LatCritproject can and should engage profoundly controversial positions andproposals without indulging community-destroying disruptions thatundermine, rather than enable, our efforts to explore substantive dis-agreements and to learn from our differences of position and perspectivein the spirit and expectation of lively and lasting friendship.

In retrospect, it also bears noting that our collective efforts to self-consciously build the LatCrit community, and by implication any com-munity, upon a commitment to anti-essentialist anti-subordination poli-tics, is an unprecedented project of millennial proportions. Questionspending today on the LatCrit agenda will emerge tomorrow as definitivequestions of the 2 1st century. This is because the human communitymust find ways to construct identities that do not depend on the activa-tion of essentialized differences or the reproduction of sociolegal hierar-chies. There is no sustainable alternative. In the 2 1st century,controversies that today are triggered by LatCrit's theoretical determina-tion to reveal essentialist assumptions and traverse, in solidarity, suchinherited boundaries as mark the distinctions of race, ethnicity, class,gender, sexual orientation and nation will tomorrow erupt the discursive

and theoretical development generated by the BlackCrit focus group discussion), <http://nersp.nerdc.ufl.edu/-malavetlatcrit/lcivdocslcivsubs.htm>.

9. To be sure, lounging on the pool deck of the luxurious Eden Roc Hotel, I did experience amoment of cognitive dissonance, which I was quickly able to resolve because I've never boughtthe line that our commitment to anti-subordination might be rendered any less authentic bysharing some moments of privilege. To my mind, that view reflects a crabbed and myopicmisunderstanding of the ethical substance, political objectives and emotional dimensions of thepractice of liberation politics. See, e.g., JOsE MIRANDA, MARX AND THE BIBLE: A CRITIQUE OF

THE PHILOSOPHY OF OPPRESSION (John Eagleson trans., 1974) (distinguishing the structuralconcept of "differentiating wealth" from the individual ownership of property). Like JohnHayakawa Torok, I think LatCrit scholars need to find ways to provide ourselves and each otherrespite from the conflict and controversy to which our anti-subordination commitments routinelyexpose us - precisely so that we never give up or burn out. See John Hayakawa Torok, Findingthe Me in LatCrit Theory: Thoughts on Language Acquisition and Loss, 53 U. MIAMI L. REV.1019 (1999).

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boundaries of sociolegal theory and confront the world community asthe wo/man-in-the-local/global streets, trodding the electronic highwaysfor news of how, when and where the human flows in motion will be setor let to rest. Borders busted by new configurations of freedom andcompulsion are producing new social realities in need of new identities,beyond the essential-isms of the modem that currently, and not so tenu-ously, still organize so much the conscious and unconscious of somany. "o

It is precisely because LatCrit theory has taken up the challenge ofproducing knowledge and performing community for the purpose ofmanifesting and advancing an anti-essentialist commitment to anti-sub-ordination politics that the LatCrit community stands as microcosm ofthe many challenges that will face the global community in ever morepressing degrees. Our in/ability to negotiate the differences amongst us,to link identities to histories, histories to the articulation of an ethicaland future-oriented vision, and our visions to the consolidation of effec-tive and transformative political coalitions - on this - the stuff ofdreams - depends the future of such weighty 2 1s' century imperativesas world peace, social justice, and human liberation."1

With this in mind, this Foreword seeks to contextualize the LAT-CRIT III symposium essays in relation to four basic points of reference:the first is LatCrit's evolving substantive agendas; the second is theimpact of our discourse and interactions on our community-buildingobjectives and on alternative trajectories for institutional development ofthe LatCrit project; the third is the broad array of issues and many fieldsof substantive inquiry that have not yet been addressed in LatCrit theory.These three points create a dialectical frame of reference linking past,present and future, thereby enabling us, more meaningfully, to assesswhere we have been and to project a vision of where we should go. Thefourth point of reference refers back to the pre-conference objectives asdelineated in the substantive program outline;12 it injects a fourth

10. See, e.g., Charles R. Lawrence III, The Id, The Ego and Equal Protection: Reckoningwith Unconscious Racism, 39 STAN. L. REV. 317 (1987) (unconscious racism pervasive); AngelaJ. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13(1998) (unconscious racism in criminal justice system); Sylvia R. Lazos-Vargas, Democracy andInclusion: Reconceptualizing the Role of the Judge in a Pluralist Polity, 58 MD. L. REV. 150,263-64 (1999) (unconscious racism in interpretation of affirmative action); Susan Sturm, Race,Gender, and the Law in the Twenty-first Century Workplace: Some Preliminary Observations, IU. PA. J. LAB. & EMP. L. 639 (1998) (unconscious racism in labor and employment policies andpractices).

11. See Francisco Valdes, Outsider Scholars and "OutCrit" Perspectivity:Postsubordination Vision as Jurisprudential Method, 49 DE PAUL L. REV. 3 (forthcoming 2000).

12. The LATCRIT III Substantive Program Outline can be found by visiting the LatCritwebpage at <http://nersp.nerdc.ufl.edu/-malavet/latcrit/archives/lciii.htm>.

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dimension of intentionality into our understanding of LatCrit dynamicsbecause what we actually achieve at any LatCrit gathering means differ-ent things and offers different lessons depending on its coherence with,departure from and/or expansion of the objectives we intended toachieve. Using this four-part frame of reference to contextualize theessays in this symposium enables us to assess the evolution of LatCrittheory and praxis in ways that engage the multiple dimensions of a pro-ject that is always and everywhere both about producing knowledge andabout performing community.

The rest of this Foreword divides in three parts. This three partstructure reflects, but does not directly track the live-events of the con-ference, which are detailed both in the LatCrit III Substantive ProgramOutline and the LatCrit III Program Schedule. 3 The live-events wereprogrammed to effectuate the conference planners' self-conscious andconcerted commitment to push LatCrit theory into new substantiveareas, to encourage dialogue across jurisprudential and disciplinaryboundaries, to bridge the gap between theory and practice, to experimentwith new discussion formats, to include newcomers, to accommodatethe many responses to our initial call for papers and to provide a forumfor works-in-progress. To this end, the program featured four plenaries,two focus-group discussions, four keynote addresses, five concurrentpanels and a concurrent works-in-progress session. However, as in pre-vious LatCrit conferences, the energy, richness and synergies of our dis-course exceeded the pre-established structure of our program - aphenomenon reflected, this time, in the many thematic interconnectionsevidenced across the keynotes, plenaries and concurrent panels, as wellas by the fact that a number of essays submitted for this symposiumvolume were inspired by, but not delivered at, the LatCrit III conference.Organizing this abundance into a coherent final product has been a bor-der-busting project in its own right precisely because the expedient oftracking the live-events was simply untenable. Instead, the objective inthis symposium, and therefore in this Foreword, has been to cluster thevarious essays around the substantive themes most directly salient to ourdiscussions at LatCrit III.

Part I, entitled Beyond/Between Colors: De/Constructing Insider!Outsider Positions in LatCrit Theory, takes up the essays in the first twoclusters. These essays demonstrate the continued centrality of identitypolitics in LatCrit discourse, making questions of intra-group hierarchyand inter-group justice of special salience in any LatCrit gathering and

13. See id. (for webpage address).

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their exploration a critical dimension of the continuity we seek to main-tain. They also demonstrate that each time the LatCrit community takesup these issues in our formal gatherings, we approach them with aheightened awareness of the broader context in which we articulate thepolitical implications of Latina/o identity. Using a variety of criticalmethodologies, including doctrinal deconstruction, policy-based polit-ical analysis of current affairs, personal narratives and social psychol-ogy, these essays take up the challenge of articulating how the anti-essentialist anti-subordination aspirations of the LatCrit project areimplicated in struggles over such relatively theoretical matters as judi-cial power, interpretative objectivity and personal identity, as well as inthe more immediate political struggles over immigration policies, minor-ity access to legal education, the delivery of legal services to the poor,the ongoing expropriation of indigenous peoples in Latin Americancountries and the particularities of intergroup relations in South Florida,the site of the LatCrit III conference. 14

Both individually and cumulatively, these essays challenge LatCritscholars to deconstruct essentialist representations of the Latina/o condi-tion by attending to the particularities of subordination as experiencedby different groups at different junctures of historical time and trans/national space. As critical methodology, attention to the particular helpsunpack intra and intergroup hierarchies, enables critical analysis to resistthe suppression of intra-group diversities and exposes instances in whichrepresentations of a common good or shared imperative are manipulatedand monopolized to configure relations of intra and intergroup privilege.This attention to the particularities of subordination can, however, gen-erate its own problems - most notably the problem of comparing sub-ordinations both within and between groups. Such intergroupcomparisons activate identifications that can dis/organize alliances andcan therefore have profound and varied impact on the future viability ofany coalition project - depending on the kinds of political positioning aparticular mode of comparison tends to promote.' 5 At the same time,

14. This emphasis on the local politics in South Florida is consistent with prior practice ofplanning LatCrit conferences to use the location of our conferences to increase our collectiveknowledge of the particularities of Latina/o realities across geographical areas. See Iglesias &Valdes, supra note 2, at 574 n.185 (discussing the economic tour of San Antonio as anotherinstance of engaging the particularities of the areas in which the conference is held).

15. Elizabeth M. Iglesias, Human Rights in International Economic Law: Locating Latinasios in the Linkage Debate, 28 U. MIAMI INTER-AM. L. REV. 361 (1996-97) [hereinafter Iglesias,International Economic Law] (exploring the way different intra-Latina/o collective identities andpolitical alliances - some more progressive than others - are triggered by the discourses ofdevelopment, dependency and neo-liberalism and the very different impact these alliances wouldhave on the project to link enforcement of human rights to trade and finance regimes regulatedby international economic law). My point here is that the configuration of collective identities and

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attention to the particularities of subordination makes intergroup com-parisons practically inevitable.

LatCrit theory thus faces the formidable task of articulating an ethicand politics through which the practice of comparing the different reali-ties of subordination that are increasingly revealed through our particu-larized analyses can be made to foster, rather than destroy, thepossibilities for intergroup solidarity and genuine understanding acrossour many differences of experience and position. We need to learn howto articulate our intergroup comparisons in ways that energize new soli-darities and promote more fluid and inclusive political identities byrevealing new interconnections and commonalities among theoppressed despite and perhaps because of our differences. Indeed, under-stood specifically as a way of learning about and engaging our differ-ences, intergroup comparisons can enable the affirmative valuation andembrace of the differences that make us both ourselves and not eachother.' 6 The essays in these first two clusters provide a valuable point ofdeparture for this important task because their attention to the particular-ities of subordination across different contexts also illustrates a varietyof instances of intergroup comparison.

Part II, entitled Substantive Self-Determination: Democracy, Com-municative Power and Inter/National Labor Rights reflects the rapidlyexpanding agenda marked for LatCrit attention. This Part takes up threeclusters of essays. The first cluster seeks to articulate a LatCrit perspec-tive on the disjunctures between reality and rhetoric in the transition andpractice of democracy. The second cluster focuses on communicativepower, and the third and final cluster focuses specifically on the wayLatCrit antisubordination theory and practice is implicated in and acti-vated by the sociolegal structures of labor and employment in anincreasingly globalized society. Cumulatively, the essays in these threeclusters reflect a concerted and self-conscious effort to expand the sub-stantive concerns of the LatCrit movement beyond the familiar fare of

political alliances is not "naturally" given. Nor do they flow directly from our position within anyparticular "group." Instead, these identities and alliances are constructed in and through thediscourses we deploy. Historical comparisons are precisely the kinds of discourse that organizepolitical alliances and construct collective identities, for better or worse. It is therefore critical tosubject any inter-group comparisons to the kind of political alignment analysis I am againsuggesting here. For a different, but allied, vision of the kind of political impact analysis that isneeded, see Sumi Cho, Essential Politics, 2 HARV. LATINO L. REV. 433 (1997) [hereinafter Cho,Essential Politics].

16. See Catherine Peirce Wells, Speaking in Tongues: Some Comments on Multilingualism,53 U. MIAMI L. REV. 983 (1999) (providing a clear and beautiful account of the way our ethic ofinter-group relations needs to progress beyond a level where mutual recognition and regarddepends on the identification of commonalities to a level where we learn to value differenceitself).

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"Latinalo issues." This is an appropriate and timely developmentbecause the struggle to articulate an anti-essentialist theory and practiceof coalitional politics and transformative legal intervention implicatesLatCrit scholars in a project that must concern itself with issues notpeculiarly or exclusively of interest to Latinas/os in this country.

Until relatively recently, the trials and tribulations, for example, ofthe international peace movement, the labor movement, the environmen-tal movement and the international movement for human rights, like thedeconstruction of U.S. national security ideology or the critical analysisof the legal regimes organized by antitrust, tax and corporate laws have,for the most part, been cast as matters of universal concern, not particu-larly relevant to Latina/o and other minority communities, whose pri-mary focus of attention has been thought to center on issues ofdiscrimination and the meaning of equal protection.' I LatCrit theory, bycontrast, claims an interest in matters of universal concern, preciselybecause it rejects the metaphysical and epistemological assumptions thatunderpin the bifurcation of universal and particular. 8 By taking up andsubjecting to critical anti-essentialist analysis such matters as the rheto-ric and realities of the democratic project, the legal structures of commu-nicative power and the future of the labor movement in and beyond theUnited States, these essays demonstrate how attention to the particulari-ties of Latina/o experiences and perspectives can produce a richer andmore contextual understanding of the broader contexts and multipledimensions of the human struggle for justice and peace.

Finally, Part III takes up the essays in the cluster entitled, MappingIntellectual/Political Foundations and Future Self-Critical Directions.Though only three years old, LatCrit theory reflects a rich and variedintellectual inheritance because of the wide diversity of scholars whohave chosen to self-identify as LatCrit scholars or participate in LatCritconferences. Thus, LatCrit Theory finds its intellectual roots in CriticalRace Theory, Critical Race Feminism, Chicano/a Studies, Law and Soci-ety, and Critical Legal Studies precisely because these various strains ofcritical discourse are the intellectual roots of the individuals whoseenergy drives the LatCrit project and secures its continued evolution.On the other hand, formations of scholarly communities do not sponta-neously generate; and, in this respect, LatCrit theory is a project with aparticular institutional history that reflects the efforts and visions of par-

17. See, e.g., Alice Abreu, Lessons from Latcrit: Insiders and Outsiders, All at the SameTime, 53 U. MIAMI L. REV. 787 (1999) (critiquing tendency to channel Latinas/os into fieldsdeemed particularly relevant to Latinas/os).

18. See infra notes 108-117 and accompanying text (reconstructing relationship betweenuniversal and particular in the articulation of anti-essentialist critical legal theory).

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ticular individuals responding to and reacting against the perceived limi-tations of each of the various strains of critical discourse that precede it.

The essays in Part III reflect this rich and varied intellectual inheri-tance even as they raise important questions about the purpose, historyand future trajectories of the LatCrit project. In this vein, the one defini-tive lesson to be gleaned from the three years of LatCrit conferences thatculminated in LATCRIT III is that there are major differences betweenthe kind of intellectual work that aims at articulating new criticalinsights in individually authored law review articles and the kind ofwork required to operationalize new possibilities of thought and actionin ways that can effectively reorganize the dynamics of group interactionand generate a shared theoretical discourse with common points of refer-ence and principles of engagement. Learning to understand and negoti-ate the vast spaces between the individual conceptualization of newpossibilities and the collective processes that must be activated to trans-late these new insights into shared understandings, and to then manifestthese shared understandings in new forms of interaction and institutionalarrangements, is a crucial imperative in the further evolution of LatCrittheory and community.

This learning is crucial and central precisely because the practiceof LatCrit conference organizing has been self-consciously and inten-tionally aimed, since its inception, at transforming the production oflegal scholarship from an experience of intellectual isolation into a prac-tice of collective engagement and empowerment.' 9 Once this collectiveproject becomes the imagined purpose and desired objective of our gath-erings, the value of our work can no longer be measured simply by thebreadth of any individual's vision or the depth of any one analysis, butby the degree to which our gatherings are effective fora for communicat-ing and operationalizing the abstract ideas we so ably articulate in ourindividual work. Because the energies, efforts, errors, strengths, limita-tions and evolving visions of embodied human beings are such centralcomponents of this collective learning process, this Foreword also takesup the important challenge of recounting the historical development andinstitutional trajectories of the LatCrit project.

19. Francisco Valdes, Latinalo Ethnicities, Critical Race Theory, and Post Identity Politics inPostmodern Legal Culture: From Practices to Possibilities, 9 LA RAZA L.J. 1, 11-12 (1996)(noting that the publication of LatCrit conferences serves "to build relationships among andbetween Latina/o legal scholars and journals; [and] in this way ... foster the work and success ofboth.").

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I. BEYOND/BETWEEN COLORS: CONSTRUCTING INTER-GROUP

SOLIDARITY AND DECONSTRUCTING INSIDER/OUTSIDER POSITIONS IN

LATCRIT THEORY AND COALITIONAL POLITICS

A. Centering Particularities and Comparing Subordinations:Toward an Ethic of Inter-Group Comparisons

The four essays in this first cluster provide different perspectives onthe possibilities and obstacles confronting any project to promote inter-group solidarity.2" Professor Luna's opening essay seeks to identifypoints of commonality between Blacks and Chicanos by forwarding adeconstructive analysis of the legal doctrines through which judicialinterpretation facilitated both the institution of Black slavery and the dis-possession Mexican landowners. The other three essays focus on theparticularities of inter-group relations in South Florida. Attorney CherylLittle's essay on intergroup coalitions, immigration politics and the Hai-tian experience uses the recently enacted Nicaraguan Adjustment andCentral American Relief Act (NACARA) as the point of departure for ahistorical account of the discriminatory treatment Haitian refugees havebeen singly and systematically subjected to over the last 30 years, incontrast specifically to the treatment Cuban refugees have received dur-ing this same period. Attorney Lyra Logan provides a narrative accountof the intergroup conflicts and convergence of interests among Blackand Cuban-American political constituencies that enabled Florida toenact this country's first and only statewide state-funded affirmativeaction program aimed at increasing access to legal education for Black,Latina/o and other minority groups, whose members are grossly under-represented in the Florida State Bar. Finally, Attorney Virginia Cotorecounts the objectives and assesses the initial achievements of an inno-vative project to provide legal services to battered immigrant women inthe South Florida community.

Cumulatively, these four essays provide a rich and varied perspec-tive on the role of law in mediating or exacerbating intergroup tensionsand divisions, as well as facilitating or obstructing the possibilities forachieving intergroup justice. The narratives are of law and legal institu-tions. Though the deconstruction of white supremacist legal ideologymay initially seem far and away from the more immediate politicalstruggles for immigration relief, access to legal education and the prac-

20. Guadalupe T. Luna, On the Complexities of Race: The Treaty of Guadalupe Hidalgo andDred Scott v. Sandford, 53 U. MIAMI L. REV. 691 (1999) [hereinafter Luna, Complexities ofRace]; Cheryl Little, Intergroup Coalitions and Immigration Politics: The Haitian Experience inFlorida, 53 U. MIAMI L. REV. 717 (1999); Lyra Logan, Florida's Minority Participation in LegalEducation Program, 53 U. MIAMI L. REV. 743 (1999); Virginia P. Coto, LUCHA, The Struggle forLife: Legal Services for Battered Immigrant Women, 53 U. MIAMI L. REV. 749 (1999).

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tice and politics of designing and running an alternative legal servicesprogram, each essay provides a unique perspective on the challenge ofpromoting inter-group solidarity in theory and practice. Theory withoutpractice is a hollow luxury only the privileged can indulge; however,practice without theory too readily collapses complexity into aunidimensional struggle that can be counterproductive in the struggle forinter-group justice. Indeed, the complex social, political, cultural, eco-nomic and legal dimensions of the different struggles recounted in eachof these essays is precisely the reason why theory and practice mustremain in dialectical engagement.

BEYOND DIFFERENCE: DECONSTRUCTING THE LEGAL STRUCTURES

OF SUBORDINATION

Professor Luna's essay on the complexities of race aptly opens thefirst cluster of essays on inter-group solidarity by exploring points ofcommonality and difference across two otherwise disconnected fields oflegal doctrine.21 The first is constituted by the antebellum legal struggleof emancipated Blacks to obtain the status and privileges of U.S. citizen-ship, a struggle that culminated in the infamous Dred Scott v. Sandforddecision of 1856, which propelled the United States into its bloody civilwar. In Dred Scott, the Supreme Court declared that all Blacks, whetherfree or slave, were ineligible for U.S. citizenship because of the inherentinferiority of the African race. The court also accorded the propertyrights of southern slave owners a privileged constitutional status, deny-ing both Congress and the free-states the legal authority to confine theinstitution of slavery to the territorial boundaries of the slave-states. Thesecond field is marked by the legal struggles of Mexican-Americans toretain their lands in the territories ceded by Mexico after the MexicanWar of 1846. These struggles generated a long line of cases in whichMexican landowners were systematically dispossessed of their lands forthe benefit of white settlers, land speculators and gold-diggers.

By juxtaposing the historical tribulations of Blacks and Chicanas/osacross these two very different sociolegal contexts, Professor Lunastrikes three themes worth further comment and reflection. First, Profes-sor Luna's essay makes historical reality a central concern in the articu-lation of anti-subordination legal theory. The history she recounts is oflegal interpretation. It is a history of the arbitrary and inconsistent adju-dication of rights asserted by different outsider groups across different

21. Luna, Complexities of Race, supra note 20; see also Guadalupe Luna, ChicanalChicanoLand Tenure in the Agrarian Domain: On the Edge of a Naked Knife, 4 MICH. J. RACE & L. 39(1998).

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points in time and space.22 It is also a history, the telling of which isdesigned to reveal how the internal coherence of legal doctrine has beenrepeatedly subordinated to the external imperatives of white supremacy- a history that can only be told by deconstructing the judicial deci-sions that constitute this history. Through this deconstructive analysis,Professor Luna's essay is able to link the distinct histories of free Blacksand Mexican landowners both to each other and to a critical analysis ofthe legitimacy of legal interpretation and the role of law in the re/pro-duction of subordination. Second, her essay also opens new avenues ofcritical analysis into the way white supremacist ideology articulates thelegal meaning of U.S. citizenship, a recurring theme in LatCrit scholar-ship and throughout this symposium.23 Finally, her analysis offers a val-uable point of departure for developing an ethic and assessing thepolitical implications of intergroup comparisons.

Professor Luna locates her historical analysis in the field of legaldiscourse. Her objective is to reveal otherwise invisible similarities,demonstrating that free Blacks and Mexican land owners confronted acommon context of struggle despite apparent differences in their particu-lar experiences of subordination within white supremacy. ProfessorLuna reveals these similarities by deconstructing the interpretative strat-egies and legal arguments used to rationalize the judicial decisions thatproduced these different experiences. The differential treatment of prop-erty rights across these two contexts provides a particularly valuablepoint of comparison. By invoking the concept of due process, the DredScott decision afforded slaveowner's rights of property a constitutionalstatus that simultaneously contracted Congressional power and projectedthe legal effect of slave-state laws beyond their territorial jurisdiction.The Dred Scott decision was so immediately explosive because it castslaves as property subject to constitutional protection everywhere in thecountry. In then Chief Justice Taney's view, slave owners were entitledto travel through and reside within the free states and territories withtheir slaves and were further entitled to have their property rights inslaves protected by due process despite the fact that slavery was illegal

22. 1 follow Professor Luna's terminology, which itself follows Professor Matsuda's earlierrejection of the term "minority" in favor of the term "outsider" on the grounds that the formerterminology contradicts "the numerical significance of the constituencies typically excluded fromjurisprudential discourse." Luna, Complexities of Race, supra note 20, at 695 n.20 (citing MariMatsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV.

2320 (1989)).23. See Arriola, INS Raids, supra note 4; Kevin R. Johnson, "Aliens" and the U.S.

Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM.L. REV. 263 (1997); Enid Trucios-Haynes, The Role of Transnational Identity and Migration, 28U. MIAMI INTER-AM. L. REV. 293 (1997).

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in the free states and territories.24 Since Dred Scott's claim to U.S. citi-zenship was premised on his status as a freeman emancipated by the actof residing in free territory, the Court's constitutional analysis strippedhim of his legal claim to freedom, and hence to the citizenship statusupon which his right to invoke federal diversity jurisdiction ultimatelydepended."

Professor Luna contrasts the costly protection granted the propertyrights of slaveholders to the treatment of Mexican property owners,whose land title claims purportedly were protected by the Treaty ofGuadalupe Hidalgo. Read through the lens of legal precedent, the his-tory of land adjudication in the ceded territories is a history of arbitraryrulings and of blatant disregard for established precedent. It is a historyof nothing less than judicial lawlessness. While the United States wastreaty-bound to grant U.S. citizenship to Mexican nationals choosing toremain in the ceded territories and to respect their property rights asestablished under Spanish and Mexican law, neither the implementinglegislation, nor the process of land adjudication complied with theseobligations. Under the terms of the Treaty of Guadalupe Hidalgo, Span-ish and Mexican land titles were to be given legal effect in northameri-can courts, yet reference to Hispanic law was, at best, inconsistent. Insome instances, courts applied Hispanic law, demonstrating their famili-

24. See Stuart A. Streichler, Justice Curtis's Dissent in The Dred Scott Case: An InterpretiveStudy, 24 HASTINGS CONST. L.Q. 509, 534 (1997) (noting Taney's position that "[aln act ofCongress which deprives a citizen of the United States of his liberty or property, merely becausehe came himself or brought his property into a particular Territory of the United States, and whohad committed no offence against the laws could hardly be dignified with the name of due processof law.").

25. Dred Scott's substantive claim was that he was a free man by virtue of his years ofresidency in Illinois, a free state, and in the territories of the Louisiana Purchase that weredesignated free by the Missouri Compromise. Scott had traveled to these areas from his originalplace of residence in Missouri, a slave state, in the company and with the permission of his owner,John Emerson. Scott had married and resided in free territory for a number of years beforereturning to Missouri with his wife and children at Emerson's request. Back in Missouri, Emersondied and Scott sued for his freedom in state court. Settled precedents at the time held that slaveswho traveled to and resided within the jurisdiction of a free state or territory, with permission oftheir owners, were automatically free. Residence within these jurisdictions effected thisemancipation precisely because slavery was not legally recognized in these areas. It was furthersettled that once emancipated by residence in a free state or territory, the free individual was notre-enslaved by mere act of returning to or residing within a slave state, but was rather entitled tohave her/his free status legally recognized within the slave state. When the Missouri SupremeCourt reversed the jury verdict rendered in Scott's favor and, in the process, reversed theseestablished precedents, Scott brought suit in federal court, invoking the court's diversityjurisdiction, which applies to cases "between Citizens of different States." Scott asserted Missouricitizenship in his suit against John Sanford, who was the brother of his owner's widow and was, atthe time of the lawsuit, a citizen of New York. See Jane Larson, A House Divided: Using DredScott to Teach Conflict of Laws, 27 U. TOL. L. REV. 577 (1996); Mark A. Graber, DesperatelyDucking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENT.

271 (1997).

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arity with its requirements and with their own duty to apply it; yet, inother cases, Hispanic law was inexplicably ignored or blatantly misrep-resented.26 In a similar vein, even a minimalist interpretation of dueprocess would eschew arbitrary and inconsistent adjudication; yet Mexi-can land title cases are rife with such inconsistencies as border the irra-tional. Cases applied shifting burdens of proof, in some instancesrequiring documentary evidence of title, while, in others, mere paroleevidence was allowed to suffice. In some cases, actual physical resi-dence on the claimed property was required to confirm title despite theclaimant's valid documentary evidence. In other cases, title was con-firmed solely on the basis of documentation of doubtful authenticity.Indeed, through this morass of arbitrary adjudication, Professor Lunafinds only one regular and predictable consistency: Anglo claimantstended to win title to land, while Mexican claimants tended to lose.

Certainly, Dred Scott and the long line of Mexican land title casesoccupy very different sociolegal fields and might therefore be readilydistinguished. The Mexican land title cases might be read as justanother example of the United States repeated failure to respect custom-ary international law and honor its treaty obligations. Dred Scott, bycontrast, might be dismissed as aberration, an idiosyncratic moment ofjudicial lapse - like a handful of equally infamous Supreme Court deci-sions.2 7 However, the value of Professor Luna's analysis is that it never-theless reveals a common context of struggle shared by Blacks andMexicans and otherwise obscured by the fact that these instances of dis-possession are coded in the abstractions of legal discourse and articu-lated across very different sociolegal contexts. In particular, ProfessorLuna's search for commonalities challenges LatCrit scholars to thinkcritically about the way the doctrinal evolution of Anglo American prop-erty rights regimes is directly implicated in the material dispossessionand economic marginalization of communities of color both within andbeyond the United States. 28 Her point, after all, is that the elevated con-

26. See Peter L. Reich, Western Courts and the Privatization of Hispanic Mineral RightsSince 1850: An Alchemy of Title, 23 COLUM. J. ENVTL. L. 57 (1998); Robert V. Urias, The TierraAmarilla Grant, Reises Tijerina, and the Courthouse Raid, 16 CHICANo-LATINo L. REV. 141(1995).

27. See Symposium, The Long Shadow of Korematsu, 40 B.C. L. REV. 1; 19 B.C. THIRDWORLD L. J. 1 (1999).

28. See, e.g., Adrienne D. Davis, The Private Law of Race and Sex: An AntebellumPerspective, 51 STAN. L. REV. 221 (1999) (examining the impact of slave/master sexual relationsthrough lens of antebellum wills and estate cases); Margalynne Armstrong, Race and PropertyValues in Entrenched Segregation, 52 U. MIAMI L. REV. 1051 (1998) (exploring the impact ofracism on value of Black-owned property and the interpretation of the anti-discrimination mandatein the struggle for fair housing); Keith Aoki, No Right to Own?: The Early Twentieth- Century"Alien Land Laws" As a Prelude to Internment, 40 B.C. L. REV. 37; 19 B.C. THIRD WORLD L. J.37 (1998) (laws barring agricultural land ownership by Asians); Gloria L. Sandrino, The NAFTA

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stitutional status and due process protections accorded the propertyrights of slaveowners in Dred Scott were nowhere seen when the prop-erty rights at issue were the rights of Mexican nationals to retain thelands to which they were entitled under customary international and fed-eral treaty law, thus suggesting that the protection of property dependsmore on the racial identity of the property owner, rather than the abstractelements of property law.

LatCrit scholars can usefully follow Professor Luna's lead in manydirections, for example, by comparing the way abstract legal principlesrequiring just compensation in instances of expropriation have beenapplied when the expropriated are foreign direct investors in third worldcountries as compared to indigenous peoples separated from their com-munal lands and livelihoods by forced relocation.29 Indeed, once thesearch for commonalities leads us to center the interpretation of propertyrights regimes in our critical analysis of white supremacy, a whole rangeof familiar questions are rendered all the more compelling: we mightask not only how relations of subordination have been historically con-structed through the differential legal protection afforded white propertyowners as compared to non-white property owners, but might also beginto develop a critical analysis of the way some economic interests areaccorded the legal status of a property right, while others are not.3°

Investment Chapter And Foreign Direct Investment in Mexico: A Third World Perspective, 27VAND. J. TRANSNAT'L L. 259 (1994) (providing critical analysis of First/Third World battles overscope of duty to compensate expropriation).

29. See, e.g., Jose E. Alvarez, Critical Theory and the North American Free TradeAgreement's Investment Chapter Eleven, 28 U. MIAMI INTER-AM L. REV. 303 (1996-97) (criticalanalysis of investor rights regime established by NAFTA reveals how economic and politicalinterests of privileged are given priority of over economic and political rights of poor); KeithAoki, Neocolonialism, Anticommons Property, And Biopiracy in The (Not-So-Brave) New WorldOrder of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11 (1998)(new wave expropriation of indigenous peoples through "biocolonialism"); Iglesias, InternationalEconomic Law, supra note 15, at 386 (noting that the rights of property so centrally featured in theCuban Liberty and Democracy Act are not equally respected when the property rights at issue arethe rights of indigenous peoples displaced from their communal lands without just compensation).

30. For an analysis calling for critical legal scholarship that centers the legal structures ofpolitical economy in the analysis of white supremacy, see Elizabeth M. Iglesias, Out of theShadow: Marking Intersections In and Between Asian Pacific American Critical LegalScholarship and Latinalo Critical Theory, 40 B.C. L. REV. 349; 19 B.C. THIRD WORLD L. J. 349(1998) [hereinafter Iglesias, Out of the Shadow]. To this end, a critical comparative analysis ofthe way economic interests have/not been recognized as property rights across different sociolegalcontexts might provide significant insights in developing an anti-essentialist anti-subordinationanalysis of the legal structure of American political economy. Compare, Reich, supra note 26(recounting the doctrinal manipulations that integrated subsurface mineral rights into ownership ofsurface lands), with Local 1330 United Steel Workers of America v. United States Steel Corp.,631 F.2d 1264 (6th Cir.1980) (refusing to recognize community property rights as basis forenjoining management to sell factory it had decided to close despite evidence of profitability, anddevastating impact of closure on community that had assisted company with public subsidies andother "giveback").

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THE SUPREMACY OF CITIZENSHIP: BEYOND A DISCOURSE OF

ABSOLUTE DIFFERENCE

Professor Luna's comparative analysis also provides importantinsights into the way the search for commonalities through inter-groupcomparisons can expand the opportunities for intergroup identificationand solidarity. For example, Taney's reasoning denied Dred Scott U.S.citizenship on the grounds that he was Black and that Blacks were soinherently inferior that they could never constitute a part of "the peopleof the United States. 31 It is not hard to see how the brutal racism of thisdecision might easily be configured around a discourse of fundamentaland irreconcilable difference.32 Such a discourse would, however, offervery little room for comparative projects of the sort Professor Luna hasforwarded here because, in a discourse of absolute difference, the onlything that matters is that there is a fundamental difference between los-ing one's property through theft, corruption and racial bias and beingaltogether denied the self-possession of one's own body and mind, one'slabor and sexuality.33 A discourse of absolute difference destabilizesthe search for intergroup commonalities, or rather rejects the project outof hand. In this discourse, Black and Chicana/o histories are positionedwithin a hierarchy of dispossession, with one group cast as "more dis-possessed" than the other. Indeed, the experience of African Americanslavery is cast as so profoundly unbridgeable - an abyss so separateand apart from the experiences of Chicanas/os in the ceded territories -that there is no meaningful point of reference or departure for construct-ing a common identity or forging a common agenda around these differ-ent histories of dispossession. The wrongs can never be compared;therefore the boundaries of difference can never be traversed, and inter-group solidarity is that much more ephemeral.34

By contrast, in juxtaposing the Dred Scott decision to the Mexicanland title cases, Professor Luna challenges LatCrit scholars to seek thecommonalities of oppression without collapsing these two distinct histo-ries into one false norm.35 The payoff is a new perspective on the way

31. Luna, Complexities of Race, supra note 20, at 710.32. See CLAUD ANDERSON, BLACK LABOR, WHITE WEALTH: TFE SEARCH FOR POWER AND

ECONOMIC JUSTICE (1994).33. See, e.g., Dorothy Roberts, Racism and Patriarchy in the Meaning of Motherhood, I AM.

U. J. GENDER & L. 1, 7-10 (1993) (recounting brutality of slave system); see also Sumi K. Cho,Multiple Consciousness and the Diversity Dilemma, 68 U. COLO. L. REv. 1035, n.103 (1997)(arguing for a unified racial critique of white supremacy based on commonalities in the racialtrauma of slavery visited upon indigenous peoples and Blacks).

34. See Angela P. Harris & Leslie Espinoza, Afterword: Embracing the Tar-Baby: LatCritTheory and the Sticky Mess of Race, 85 CAL. L. REv 1585; l0 LA RAZA 499 (1997) (exploring thetensions between the rhetoric of Black exceptionalism and multiracial coalitions).

35. Luna, Complexities of Race, supra note 20.

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law is implicated in the present day configuration of white supremacy.Read through the discourse of Black exceptionalism, Dred Scott is aboutslavery - a form of oppression uniquely experienced by Blacks in thiscountry. Being about slavery, the decision is dead precedent, thoroughlydiscredited and consigned to historical infamy. Read, by contrast,through a discourse of common oppression, Dred Scott is about the con-figuration of state power around a citizen/non-citizen dichotomy.Indeed, the language Professor Luna quotes from the Dred Scott opinionmakes it abundantly clear that the decision not only denied free Blackscitizenship, but in doing so, transfigured a representative government oflimited powers into an imperial state. This is because the constitutionalframework of government underpinning the Dred Scott decision revealsa state that claims the power to govern, without any legal limitations, aclass of persons whose interests it does not even pretend to represent. 36

These persons are the non-citizens, who do not constitute part of "thepeople of the United States," do not "hold the power," do not "conductthe government through their representatives," and therefore do not"enjoy the rights and privileges" that the constitution secures only to itscitizens.37 Unlike slavery, the forms of oppression that have been organ-ized around the citizen/non-citizen dichotomy and effectuated throughthe exercise of imperial power, both domestically and internationally,are common to many, including Blacks who have never been enslaved.38

36. See Ediberto Romin, The Alien-Citizen Paradox and Other Consequences of U.S.Colonialism, 26 FLA. ST. U. L. REV. 1 (1998); Efren Rivera Ramos, The Legal Construction ofAmerican Colonialism: The Insular Cases (1901-1922), 65 REV. JUR. U.P.R. 225 (1996).

37. Luna, Complexities of Race, supra note 20, at 713, quoting Dred Scott opinion:

The words 'people of the United States' and 'citizens' are synonymous terms, andmean the same thing. They both describe the political body who, according to ourrepublican institutions, form the sovereignty, and who hold the power and conductthe Government through their representatives. They are what we familiarly call the"sovereign people," and every citizen is one of this people, and a constituentmember of this sovereignty. The question before us is, whether the class of personsdescribed in the plea in abatement compose a portion of this people, and areconstituent members of this sovereignty? We think they are not, and that they arenot included, and were not intended to be included, under the word 'citizen' in theConstitution, and can therefore claim none of the rights and privileges which thatinstrument provides for and secures to citizens of the United States. On thecontrary, they were at that time considered as a subordinate and inferior class ofbeings, who had been subjugated by the dominant race, and, whether emancipatedor not, yet remained subject to their authority, and had no rights or privileges butsuch as those who held the power and the Government might choose to grant them.

Id.38. For example, a discourse of common oppression might reveal otherwise invisible

interconnections in the denial of political rights to non-citizens and the felony disenfranchisementlaws that operate defacto to construct many Blacks as non-citizens. Compare Nora V. Demleitner,The Fallacy of Social "Citizenship," or The Threat of Exclusion, 12 GEO. IMMIcR. L. J. 35 (1997)(arguing that permanent residents have a compelling claim to political representation and

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Read through this discourse, the reasoning of Dred Scott is still alive andwell in the present day configuration of white supremacy. Its presentday target is no longer the Black American, as such, but the foreign,39

the poor,40 and those who are cast as "national security" threats.41

TOWARD AN ETHIC AND POLITICS OF INTERGROUP COMPARISONS

By juxtaposing the struggles of Blacks and Chicanas/os acrossthese two very different sociolegal contexts, Professor Luna demon-strates the potential value of inter-group comparisons. These compari-sons reveal the kinds of structural interconnections that can help LatCritscholars articulate a common agenda despite the different histories ofdispossession. At the same time, she also recognizes that inter-groupcomparisons can be dangerous. She is therefore, careful to disclaim anyessentialistic intent "to collapse the histories of people of color into onefalse norm." Instead, her stated purpose is "to demonstrate how lawfrom one historical period established the[ ] subordinate status [of thesetwo different groups]."42 For this reason, Professor Luna's essay pro-vides a valuable point of departure for reflecting on the ethics and poli-tics of intergroup comparisons.

participation), with Virginia E. Hench, The Death of Voting Rights: The LegalDisenfranchisement of Minority Voters, 48 CASE W. RES. L. REV. 727 (1998) (noting that "[o]f atotal voting age population of 10.4 million Black men in the United States, approximately 1.46million have been disqualified from voting because of a felony conviction. Of these, 950,000 arein prison, on probation, or parole, and more than 500,000 are permanently barred by convictionsin the 13 states that disenfranchise prisoners for life.").

39. Thus, for example, in United States v. Verdugo-Urquidez, 494 U.S. 1092, 110 S. Ct. 1839(1990), the present-day court reasoned that the 4th Amendment did not apply extraterritorially toU.S. enforcement activities taken abroad against non-U.S. citizens because the latter did notconstitute part of "the people" protected by the Constitution. Though the majority at no time citedthe Dred Scott decision, its reasoning reveals the legacy of Dred Scott: a discursive order that canbe readily reactivated to consolidate an imperial state. Because noncitizens are not part of "thepeople," they can, at any moment, be made the objects of unlimited state power.

40. Saenz v. Roe, 119 S. Ct. 1518 (1999), illustrates another way the "dead hand" of the DredScott decision reaches into present day legal controversies. In Saenz, a majority of the SupremeCourt struck down a California statue imposing durational residency requirement by limitingTemporary Assistance to Needy Families (TANF) benefits through the recipients' first year ofresidence on the grounds it violated 14' Amendment right to travel. In dissent, Clarence Thomascites the Dred Scott decision to support his contention that the rights and privileges of U.S.citizenship do not include welfare rights. Id. Cf Dorothy E. Roberts, Welfare and the Problem ofBlack Citizenship, 105 YALE L. REV. 1563 (1996) (exploring the implications of racism throughanalysis linking welfare rights to a substantive vision of social citizenship).

41. See Gil Gott, A Tale of New Precedents: Japanese-American Internment As ForeignAffairs Law, 40 B.C. L. REV. 179; 19 B.C. THIRD WORLD L. J. 179 (1998) (arguing nationalsecurity ideology legitimates deployment of imperial power to enforce white supremacy bothwithin and beyond the territorial jurisdiction of the United States); Natsu Taylor Saito, JusticeHeld Hostage: U.S. Disregard for International Law in the World War I1 Internment of JapanesePeruvians - A Case Study, 40 B.C. L. REV. 275; 19 B.C. THIRD WORLD L. J. 275 (1998) (same).

42. Luna, Complexities of Race, supra note 20, at 711.

FOREWORD

The key objective, viewed through a LatCrit normativity, is toensure that our inter-group comparisons are performed in ways that pro-mote the commitments and alliances that strengthen a community of sol-idarity. Indeed, my point is even more dramatic. Not only can differentgroup histories and lived realities be compared in many different ways,but it is precisely for this reason that the value of any comparison turnson the kind of collective identifications and inter-group alliances suchcomparisons engender. Comparisons that undermine the possibilities foranti-essentialist solidarity and derail the anti-subordination imperativesof our theory and praxis ought to be rejected outright precisely becausethey are not true in any way that matters. Conversely, comparisons thatpromote these objectives ought to be embraced for further explorationand centered in our collaborative projects.43

If this position seems to play fast and loose with inherited notionsof "historical truth," that too is untrue - in any way that matters. Onthe contrary, this position simply attaches a political imperative to theinterpretative choices we make in telling our histories and comparingour subordinations. One happy truth of our otherwise decidedly unhappyera is that the once-upon-a-time illusion of a unitary history has been oh-so utterly destabilized by a proliferation of our discourses and perspec-tives. Rather than bemoaning the fact that as finite social beings, weeach access history, like any other reality, through the contingencies ofdiscursive orders that are always in flux, 4" LatCrit scholars need tounderstand this discursive flux - and the multiplicity of perspectives itgenerates - as precisely the reason why the histories we should tell arethe histories of the future we are determined to create together.4 5

43. See Iglesias, Out of the Shadow, supra note 30 (calling for more collaborative projectsorganized self-consciously around the exploration and comparison of particular histories). Thesekinds of comparisons show us commonalities even as they challenge us to confront and overcomeour internal racisms, sexisms, etc. They do not constitute a war of positions because the point isnot to establish which group is more oppressed, but to understand how they are/were oppressed inorder to change the way we are in community.

44. See DAvID HARLAN, THE DEGRADATION OF HISTORY at xx-xxii (1997). Lamenting theimpact of postmodern thought on historical practice, Harlan asks "What now becomes of the"historical fact," once so firmly embedded in its proper historical context - firmly embeddedrightly perceived, and correctly interpreted from a single immediately obvious and obviouslyappropriate perspective? The overwhelming abundance of possible contexts and perspectives, theease with which we can skip from one to another, and the lack of any overarching metaperspectivefrom which to evaluate the entire coagulated but wildly proliferating population of perspectives -all this means that the historical fact, once the historian's basic atomic unit, has jumped its orbitand can now be interpreted in any number of contexts, from a virtually unlimited range ofperspectives. And if the historical fact no longer comes embedded in the natural order of things... then what happens to the historian's hope of acquiring stable, reliable, objective interpretationsof the past? Id. at xx.

45. See Jerome McCristal Culp, Jr., Latinos, Blacks, Others & The New Legal Narative, 2HARV. LATINO L. REV. 479 (1997); Elizabeth M. Iglesias, The Inter-Subjectivity of Objective

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Attorney Cheryl Little's essay provides a valuable counterpoint.Her essay is based on years of committed advocacy on behalf of Haitianrefugees. Hers is a story of an uphill battle on behalf of a vulnerable anddisdained minority. Her point of departure is a critical analysis ofNACARA, otherwise known as the Victims of Communism ReliefAct.46 This immigration legislation provides substantial immigrationrelief for nationals of Nicaragua, Cuba, El Salvador, Guatemala, theformer Soviet Union and Warsaw Pact countries. Haitians are noticeablymissing. Attorney Cheryl Little links their absence to a historical patternof discrimination and exclusion, dating back to the initial wave of Hai-tian refugees fleeing the right wing brutality of the Duvalier regime andcontinuing through a series of instances in which Haitians have beensingled out for differential treatment. This differential treatment is all thestarker when juxtaposed against the treatment accorded Cuban refugees.Though both groups came to the United States fleeing dictatorship intheir countries of origin, Haitians fleeing the political repression of theDuvalier regime received a very different reception than Cubans fleeingCastro in the freedom flotillas of the 1960s. This differential treatmenthas also generated significant intergroup tension and unrest. Haitians,subject to indefinite detention at Krome, have engaged in hunger strikesto protest the double standard that keeps them imprisoned, even asCuban hijackers have been promptly released upon arrival in Florida.Haitians, intercepted at sea, have been repatriated to Haiti despite theirclaims of well-founded fear of persecution, while Cubans, rescued bythe Coast Guard, have been flown to Miami and paroled into the com-munity. Attorney Little sums up the differential treatment like this:

In many ways, immigration practices toward Cubans and Haitianshave represented the extremes of United States policy. While immi-gration policy toward Cubans tends to be generous and humanitarian,even with recent repatriation, immigration policy toward Haitianstends to be stringent and inhumane.47

Because so much of Attorney Little's argument is organized arounda juxtaposition of Haitian and Cuban refugee experiences, her essay pro-vides an appropriate moment to reflect anew and with greater precisionon the political implications of the way intergroup comparisons are

Justice: A Theory and Praxis for Constructing LatCrit Coalitions, 2 HARV. LATINO L. REV. 467(1997); George Martinez, African-Americans, Latinos, and the Construction of Race: Toward anEpistemic Coalition, 19 CHICANo-LATINO L. REV. 213 (1998).

46. Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160 (1997). NACARA is part of the Fiscal Year 1998 appropriations bill for theDistrict of Columbia (H.R. 2607).

47. Little, supra note 20, at 732. The interdiction, detention and parole policies aptly callattention to the disparities in our treatment of Cuban and Haitian refugees.

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articulated in LatCrit theory. It enables us to move from abstract discus-sions of the normative aspirations and commitments that ought to informthe practice of intergroup comparisons to the more difficult task of artic-ulating a methodology for assessing such comparisons from a LatCritperspective. The first step is to recognize that intergroup comparisonsimpact the formation of collective solidarities and political alignmentsby structuring the perception of similarities and differences within andbetween the varied and various groups that might potentially coalescearound any particular political project - in this case the politics of refu-gee policy. Comparing comparisons means assessing the way differentintergroup comparisons tend to structure different political alignmentsand subjecting these alternative political alignments to anti-essentialistcritical analysis informed by LatCrit commitments to anti-subordinationpolitics.48

Applying this methodology, it is worth noting that unlike ProfessorLuna, whose effort is to reveal suppressed commonalities in the legalconstruction of Black and Chicano subordination, Attorney Little's nar-rative account is organized around a discourse of absolute difference thatemphasizes the uniqueness of the Haitian refugee experience by con-trasting it to the experience of Cuban refugees. In doing so, her narra-tive marks the lines of similarity and difference along a racial schematathat casts Cuban refugees as racially white and Haitian refugees asracially Black. This racial dichotomization, though profoundly essential-ized, may nevertheless further some anti-essentialist political realign-ments at least insofar as it destablizes discourses used to pit domesticminorities against recent immigrants. Black Americans, in particular,have often been cast as the group most directly and negatively affectedby the influx of immigrants.49 Reading the treatment of Haitian refugeesthrough a discourse that links their differential treatment to the fact thata large majority of Haitians are Black can be an effective way of com-bating the articulation of anti-immigrant politics among Black Ameri-cans. By showing how Haitian refugees have been singled out forparticularly restrictive immigration exclusion, the discourse of absolute

48. See supra notes 15-16 and accompanying text.49. See, e.g., ANDERSON, supra note 32 (complaining that immigrants are assisted at the

expense of Black Americans); Toni Morrison, On the Backs of Blacks, in ARGUING IMMIGRATION

98 (Nicolaus Mills ed., 1994) (arguing that hatred of Blacks is a central step in the"Americanization" of immigrants so that "the move into mainstream America always meansbuying into the notion of American Blacks as the real aliens"); Juan Perea, The Black/WhiteBinary Paradigm of Race, in THE LATINO/A CONDITION: A CRITICAL READER 365 (RichardDelgado & Jean Stefanic eds., 1998) (quoting Morrison and acknowledging that Latinas/osparticipate in this paradigm of "Americanization" by engaging in racism against Blacks or darker-skinned members of the Latino/a community" but noting that "[c]urrent [anti-immigrant] events... belie Morrison's notion of American Blacks as "the real aliens").

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difference makes a clear link between exclusionary immigration policiesand domestic racism. The domestic anti-racist agenda is thereby chal-lenged to become more inclusive precisely because a politics of racialjustice cannot ignore the differential oppression and exclusion of Blackimmigrants without invoking and/or activating a particularly problem-atic form of intra-Black hierarchy that privileges Black Americans overBlack immigrant refugees. Thus, reading the Haitian immigration expe-rience through the discourse of absolute difference may help expand andconsolidate a pro-immigrant political coalition by foregrounding a per-spective from which achieving justice for immigrants can be seen as apart of a broader struggle for racial justice in this country.

Although Attorney Little's discourse of absolute difference mayhelp redefine the treatment of Haitian refugees as a matter of racial jus-tice, the pro-immigrant political realignments fostered by this discoursecan become truncated in two important respects. First, Haitians are notthe only racialized immigrant group that has been treated unfairly andrestrictively by U.S. immigration policy, and Black Americans are notthe only domestically subordinated group that have cast themselves asparticularly victimized by immigrant entry."0 The discourse of absolutedifference can truncate the coalitional solidarity that might otherwise beorganized around these intergroup commonalities precisely because itsaccount of racial injustice is based on the claim that harsh treatmentreceived by other immigrant groups pales in comparison to the treatmentHaitian refugees have received because they are Black. Rather than fos-tering a comprehensive and inclusive political agenda in opposition toracist immigration policies based on the substantive merits of eachgroup's particular claims of injustice, intergroup comparisons articulatedthrough a discourse of absolute difference tend to provoke intergroupcompetition over which group has received the harshest treatment.

Equally important, articulating a discourse of absolute differenceforces Attorney Little to overlook intergroup commonalities and empha-size intergroup differences in ways that suppress other significantdimensions of U.S. refugee policy. While refugees from Cuba, Haiti,Guatemala and El Salvador have come to this country seeking refugefrom dictatorship and persecution in their countries of origin, in Attor-ney Little's account, the totalitarian repression experienced in Cuba isreduced to the "relatively mild mistreatment of Cubans in their home-land (which results in a grant of asylum), while gross mistreatment of

50. See Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2HARV. LATINo L. REV. 101 (1997) [hereinafter Johnson, Latino Legal Scholarship] (discussingChicano perceptions of Mexican immigrants).

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Haitians does not."''5 This juxtaposition helps articulate a discourse ofracial difference, but only by minimizing the degree of repression incommunist Cuba and suppressing the fact that, Guatemalan and Salva-doran refugees, who like Haitians experienced gross mistreatment anddeath squad activities in their countries of origin, also have been rou-tinely denied political asylum.52 These facts do not fit neatly into a dis-course of absolute difference because the totalitarian repression in Cuba,like the systematic denial of political asylum to Guatemalan and Salva-doran refugees, both suggest factors other than race are operative in thedifferential treatment of Cuban and Haitian refugees. These other vari-ables include the articulation of U.S. national security ideology, 3 thedoctrinal structure of U.S. refugee law, particularly its economic/polit-ical dichotomy, which justifies the exclusion of "economic refugees"even as the indeterminacy of the dichotomy renders every racializedimmigrant group vulnerable to exclusion regardless of the objectivemerits of their claim to political asylum, and the unsettled controversyover the conditions and principles that justify international interventionin the "internal affairs" of repressive regimes.54

To be sure, Attorney Little's narrative account notes these vari-ables, but only in passing. Her objective is to center the reality of racialdiscrimination in the way we understand the politics of refugee policy,and in this respect, she is entirely successful. Her compelling narrativeleaves no doubt that eliminating racial discrimination from U.S. refugeepolicy is a compelling objective; nevertheless, her narrative does triggerdoubts as to whether the kinds of intergroup coalitions needed toadvance this objective are likely to coalesce around a political agendadefined by a discourse of absolute difference, particularly if this dis-course is articulated through intergroup comparisons that minimize thesubstantive claims of justice of one group in order to buttress claims ofdiscrimination made by another group. The challenge is to movebeyond these kinds of intergroup comparisons. The question is how.

51. Little, supra note 20, at 734.52. See Ari Weitzhandler, Temporary Protected Status: The Congressional Response to the

Plight of Salvadoran Aliens, 64 U. CoLo. L. REv. 249, 252 ("Two factors contributedsignificantly to the denial rate: the characterization of Salvadoran nationals as economicimmigrants, and the Reagan and Bush Administrations' foreign policies toward El Salvador.");Note, Political Legitimacy in the Law of Political Asylum, 99 HARV. L. REV. 450, 458-64 (1985)(the political dimensions of economic conditions).

53. Kevin R. Johnson, The Antiterrorism Act, The Immigration Reform Act, and IdeologicalRegulation in the Immigration Laws: Important Lessons for Citizens and Noncitizens, 28 ST.MARY'S L. J. 833 (1997).

54. Cuban-American leaders in Miami have long called for the kind of intervention in Cubathat was undertaken to dislodge the Haitian military dictatorship that overthrew President Aristide.For statistics on the percentage of Miami Cubans who support military interventions of differentsorts in Cuba, see <http://www.fiu.edu/orgs/ipor/cubapoll/index.html>.

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The answer is to articulate a broader perspective from which the particu-lar experiences and various claims of different groups can be seen aspart of a common struggle for justice.

A moment's reflection on the variables marginalized by AttorneyLittle's narrative account may provide some direction. These variablesgive reason to doubt whether a political agenda defined by the objectiveof eliminating racial discrimination from U.S. refugee policy would beenough to achieve justice for Haitian refugees - even as they suggest avariety of perspectives from which all refugees inhabit a common con-text of struggle. All refugees, including Haitians, inhabit a world inwhich U.S. policy responses to human rights violations, both at homeand abroad, are filtered through an aggressive and self-serving nationalsecurity ideology, 5 in which restrictions on mobility and exclusionarypolicies can be directed with legal impunity at the world's poorest peo-ples, and in which the international community has not yet developedthe legal norms and enforcement mechanisms to empower and protectpeoples against the repression and abuses of internal elites. 6 Readingthe differential treatment of Cuban and Haitian refugees through thesevariables, rather than the discourse of absolute difference, would activatevery different political agendas and foster very different intergroupcoalitions precisely because these variables link the critical analysis ofU.S. refugee policy to a critical analysis of the U.S. imperial state, theproduction of poverty in the international political economy, and thefailures of the interstate system of sovereign nations to sustain a worldorder based on respect for international human rights. These dimen-sions of domestic and international law and politics bear directly on theproject of achieving substantive justice for Haitian refugees; however,their transformation implicates a fundamental reconfiguration of powerrelations and requires a discourse of mutual recognition and intergrouprespect, not of absolute difference articulated through intergroup com-parisons that minimize the substantive claims of one group to enhancethose of another.

SUBSTANTIVE JUSTICE: BEYOND INTEREST CONVERGENCE

At the same time, the essay by Attorney Little effectively fore-

55. Gott, supra note 41.56. For a substantive vision of the way the international legal order might mediate the relation

between the sovereignty of states and the self-determination of peoples, see Henry J. Richardson,III, "Failed States," Self- Determination and Preventive Diplomacy: Colonialist Nostalgia andDemocratic Expectations, 10 TEMP. INT'L & COMp. L. J. 1, 75 (1996) (revealing irrationality andoffering alternatives to international legal doctrines designed to uphold concept of sovereignty byignoring claims of liberation movements within nation-states until they "earn" such recognitionthrough successful military actions- thus constituting civil war as only recourse).

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grounds the difficulties of translating abstract assertions of intergroupcommonalities into a practical politics of coalitional justice. In AttorneyLittle's narrative, the noticeable exclusion of Haitian refugees from theamnesties enacted by NACARA is significant, not only because it islinked to and informed by a long history of differential and discrimina-tory treatment towards Haitians, but because it represents an intergrouppolitical betrayal in the corridors of Congress. Though a bipartisan andintergroup coalition, including leaders of the Black and Hispanic Con-gressional Caucuses, has been coalescing in response to growing com-munity opposition to the continued and blatantly discriminatoryexclusion of Haitians, Haitians still lack the political representation andcommitted advocacy other immigrant groups enjoy. The fact thatRepublican members of Congress supporting NACARA were willingand able to perform a so-called "jihad" for the benefit of Nicaraguan, butnot Haitian, refugees raises profound questions about the practice ofcoalitional politics,57 particularly in light of another part of the story.Confronted with assertions that including Haitians in NACARA wouldkill the bill, Haitian advocates might, nevertheless, have decided to pressthe point. They might, in effect, have chosen to perform their own"jihad"on behalf of the excluded Haitians. According to Attorney Little,they did not. 8 As a result, thousands of refugees and immigrants fromNicaragua, Cuba, El Salvador, Guatemala, the former Soviet Union andWarsaw pact countries are enjoying the benefits of NACARA, leavingHaitians to wonder whether their self-restraint and self-sacrifice in thisinstance will be remembered and reciprocated in the next.

Told as a story of sell-outs and sacrifices, the story of NACARAtracks a familiar problematic in the practice of coalitional politics.Years ago, Professor Derek Bell gave us the theoretical framework forunderstanding this problematic in the context of Black/White civil rightscoalitions. Professor Bell forwarded an "interest convergence" theoryof the way white people practice coalitional politics.59 In this practice,intergroup unity and solidarity are grounded, not in any commitment toobjective justice nor in any substantive vision of inter-racial equality,but rather in the contingencies of converging group interests. Inter-racial

57. According to Attorney Little, "Nicaraguan activists have said that Republican members ofCongress carried out a jihad in obtaining legal status for them. They didn't do that for Haitiansand others excluded and punished by the new law." Let's hope they do that now. Little, supranote 20, at 741.

58. Attorney Little notes that when it became apparent that there was a powerful effort toexclude Haitians in the legislation, "NACARA's architects maintained that if the Haitians wereincluded the bill would die, and supporters of the Haitians in Congress agreed to permit theCentral American refugee relief legislation to move forward without including them." Id. at 740.

59. Derek Bell, Brown v. Board of Education & the Interest-Convergence Dilemma, 93HARv. L. REV. 518 (1980).

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civil rights coalitions were viable only so long as white people saw theirown particular self-defined group interests furthered by supportingBlack civil rights struggles. The much discussed collapse of the civilrights coalition, and increasing reactionary retrenchment aimed ataffirmative action policies, minority business set-asides, entitlementsprograms, read against the backdrop of economic problems, provideample evidence in support of Professor Bell's initial thesis.6°

Attorney Little's narrative reveals the way Haitian refugees werecast as politically expendable in the coalitional politics that achieved theenactment of NACARA. It thus raises the significant question whetherminority groups, their political representatives and legal advocates aredestined to replay the interest convergence politics through which thewhite majority has strategically maintained its privileges. It challengesLatCrit theory, in particular, to struggle with the problem of articulatinga more meaningful foundation for our coalitional theory and praxis.61

Can we move the practice of intergroup coalitional politics beyond thepseudo solidarity and fleeting alliances of contingent convergence ofinterests? Of course, this question, itself, presupposes a level of per-ceived commonality that may have yet to be imagined in the local poli-tics of South Florida.

In this context, the question asked by Attorney Lyra Logan in heressay in this symposium is whether Black and Cuban-American legisla-tors, and the communities they purport to represent, can set aside theirdifferences to establish common cause.62 She believes they can, and thisbelief is based on her experiences directing Florida's Minority Participa-tion in Legal Education Program. The MPLE is a statewide, state-fundedaffirmative action program designed to increase minority participation inlegal education through annual funding of scholarships for 200 minoritylaw school students and 134 undergraduate pre-law students. AttorneyLogan's express purpose in recounting the history of the MPLE Programis to reflect critically on the conditions that enabled Black and Cuban-

60. See John A. Powell, An Agenda for the Post-Civil Rights Era, 29 U.S.F. L. REV. 889(1995) (linking disorganization of civil rights movement among other things to rise of colorblindideology); Michael J. Klasman, Brown, Racial Change and The Civil Rights Movement, 80 VA. L.REV. 7 (1994) (recounting history); Eric K. Yamamoto, Critical Race Praxis: Race Theory andPolitical Lawyering in Post-Civil Rights America, 95 MIcH. L. REV. 821 (1997) (suggestingstrategies for meaningful revival of civil rights agenda).

61. Iglesias & Valdes, supra note 2; Berta Esperanza Hemindez-Truyol, Building Bridges:Latinas and Latinos at the Crossroads, in THE LATINO/A CONDITION, supra note 49, at 24, 30-31[hereinafter Hemndez-Truyol, Building Bridges] (explaining the many ways Latinas/os can tapthe experience of intersectionality and multidimensionality to build bridges across differencesboth within Latina/o communities and between Latina/o and other minority communities); Eric K.Yamamoto, Conflict and Complicity: Justice Among Communities of Color, 2 HARV. LATINO L.REV. 495 (1997).

62. Logan, supra note 20, at 743.

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American state legislators to transcend a politically partisan and raciallydivisive competition over the creation and location of "a minority lawschool" in Florida to develop the intergroup, bi-partisan coalition thatsucceeded in enacting the MPLE Program.

Attorney Logan explains that the MPLE program was proposed byFlorida's State University System as an alternative to competing propos-als to establish a new law school at Florida International University(FIU), which is 50% Hispanic and 11% Black, or to reopen a law schoolat the historically Black Florida A&M University (FAMU). FAMU'sall-Black law school was closed by Florida's all white legislature in1965 in order to open another white law school at Florida State Univer-sity. The decision was purportedly made to enable Florida to meet anexpected increase in the demand for lawyers, since FAMU's law schoolwas reportedly failing to graduate sufficient numbers of lawyers thatwould later be admitted to the Florida Bar. The recent controversy overwhether a new law school should be located at FIU, a proposal favoredby Florida's Cuban legislators, or reopened at FAMU, the alternativesupported by Florida's Black legislators, was sparked by various reportsindicating that minorities are seriously under-represented throughout thelegal profession in Florida. Indeed, in 1990, the Florida Supreme CourtRacial and Ethnic Bias Study Commission concluded that a criticalshortage of minority law students, attorneys and judges was a major fac-tor contributing to the denial of equal justice for minorities in the State.

According to Attorney Logan, the MPLE program aptly illustratesthe value of intergroup coalitions. The proposal to establish the scholar-ship program was introduced in 1994 by a Black representative in theHouse and a Latino Senator, as a bi-partisan, biracial compromise bill.This bi-partisan, bi-racial support has enabled the program to survive thetransfer of power between Democrats and Republicans in the variouselections since 1994. Rather than continuing a partisan and racially divi-sive competition for a law school that the State had no intention of fund-ing, the Black and Hispanic legislators were able to put aside theirdifferences and find common cause in a program that would help bothgroups achieve the objective of increased minority participation in legaleducation and the legal profession.

The problem is that, as her account indicates, this successful coali-tional initiative is a case study in interest-convergence politics. Indeed,the success of the coalition was grounded in the contingencies of themoment, most particularly on the fact that the State could not justifygiving either group the law school it wanted. If the State had decided togive a school to one group, this bi-racial, bi-partisan coalition wouldnever have coalesced. Because the State did not, the two groups had to

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cooperate or walk away with nothing. This coalition is, however, fragileand unstable. Each group still wants "its own" law school, and both FlUand FAMU have indicated that a law school is among their top prioritiesfor 1998-2003. The stakes are as daunting as the coalition is fragile. AsAttorney Logan observes, "[i]f that battle reheats and intensifies,chances for future alliances on any issue will become more and moreremote. Also, if one group gets a school, the other group may well findits under-representation left inadequately addressed. 63 The fragility ofthis coalition is directly attributable to the fact that it is based on a con-tingent convergence of interests, rather than a substantive vision of andcommitment to intergroup social and racial justice. Thus, while AttorneyLyra Logan views the MPLE as evidence of progress in intergroup coal-itional politics, a LatCrit sensitivity must demand more from bothgroups.

At a minimum, a substantive vision of intergroup justice wouldeschew any political move to cast the problem of equal justice as a sim-ple matter of increasing the number of Blacks and Latinas/os enrolled inFlorida law schools or admitted to the Florida Bar, particularly whennumber-counting can operate to pit Blacks and Latinas/os against eachother in a zero-sum competition. From the perspective of the Black andLatina/o residents of Florida seeking equal justice and affordable legalservices, the crucial question is not who is going to control any proposedminority law school, nor how many Blacks and Latinas/os are admittedto the Bar, but how that control will be exercised and whether thoseattorneys will be trained, committed and enabled to practice law forsocial, racial, and ethnic justice.

The current structure of the legal profession in Florida, as in manyplaces, is hardwired for inequality and injustice.64 Despite the supposedover-supply of lawyers in South Florida, low and middle income indi-viduals and families, as well as many small businesses, are literallypriced out of the market for private legal services to such a degree thattheir legal needs go unattended or they resort to pro se representation.65

State supported legal services for the poor are grossly underfunded.66

63. Id. at 747.64. See Where the Injured Fly for Justice, REPORT AND RECOMMENDATIONS OF FLORIDA'S

SUPREME COURT RACIAL AND ETHNIC BIAS STUDY COMMISSION, Part I (Dec. 11, 1990); seegenerally JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN

AMERICA (1976).65. In 1998, the problems caused by the high number of pro-se litigants in family court

prompted the Florida Supreme Court to approve a family law self-help program. See CourtApproves Family Law Self-help Centers, FLA. BAR NEWS, Dec. 15, 1998, at 5. The problem,however, remains. See, e.g., Jan Pudlow, Court Asks Family Law Section to Turn Attention to ProSe Problem, FLA. BAR NEWS, AUG. 15, 1999 , at 17.

66. See, e.g., Talbot D'Alemberte, Tributaries of Justice: The Search For Full Access, 73-

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Recent law school graduates inspired by a vision of social justice and adesire to practice law in the public interest are hard-pressed finding anypublic interest jobs, and certainly any that pay a living wage afteraccounting for law school loan repayment obligations.67

Rather than empowering minority students to become effectiveadvocates on behalf of the poor and the marginalized or even to achieveindividual fulfillment through personally meaningful work, many minor-ity students experience their legal education as a socialization processthat numbs their sense of justice, subjects them to relentless microag-gression, triggers profound identity crises, ignites their appetites for sta-tus and money, distances them from the communities they initiallywanted to help and, if they are successful by mainstream standards, con-demns them to slave away for years at any job that allows them to repaytheir student loans, while they take solace in the fact they are makingmore money than they have the free time to spend.68 Integrating minori-ties into this pre-existing status quo without serious attention and proac-tive efforts to reform the way legal education, the legal profession andthe delivery of legal services are currently structured may provide Blackand Latina/o students with a well-deserved opportunity for individualadvancement through professional education, but it will not in and ofitself ensure that low and middle income Blacks and Latinas/os, not tomention the poor of any race, will enjoy equal justice, nor that these newattorneys will be ready and able to practice law for social justice.

Clearly, the MPLE program is a remarkable feat in an era of back-lash and retrenchment. The question that Attorney Logan's essay effec-tively raises for LatCrit theory and praxis is this: how can we use thecontingencies of interest convergence as a stepping stone toward, ratherthan a restriction upon, the achievement of social justice. Both the civilrights and the MPLE experiences show that coalitions based on interest-convergence can be put to good use, but those two experiences alsocounsel LatCrits to transcend the limitations and fragilities of these stra-

APR FLA. B.J. 12, 14 (1999) (noting that after Republican Party took control of Congress in 1995,Congressional funding of legal services for the poor dropped, in real dollars, to its lowest levelever - 12% below what it was when Reagan took office in 1981).

67. See, e.g., Bruce A. Green, Foreword: Rationing Lawyers: Ethical And ProfessionalIssues in The Delivery of Legal Services to Low-Income Clients, 67 FORDHAM L. REV. 1713(1999); cf Lewis A. Kornhauser & Richard L. Revesz, Legal Education And Entry Into The LegalProfession: The Role of Race, Gender, And Educational Debt, 70 N.Y.U. L. REV. 829 (1995)(advocating scholarships rather than loan repayment assistance based on analysis linking publicinterest career choices to factors other than debt burden).

68. Margaret E. Montoya, Masks and Resistance, in THE LATINO/A CONDITION, supra note49, at 276; Alex M. Johnson, Jr., The Under-Representation of Minorities in the LegalProfession: A Critical Race Theorist's Perspective, 95 MICH. L. REV. 1005 (1997); Alex M.Johnson, Jr., Think Like a Lawyer, Work Like a Machine: The Dissonance Between Law SchoolAnd Law Practice, 64 S. CAL. L. REV. 1231 (1991).

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tegic alliances. With this critical account of the MPLE experience,Attorney Logan usefully reminds LatCrit scholars that our challenge isto imagine and implement coalitions based on a vision of and commit-ment to substantive justice.

In this context, Attorney Coto's essay is a particularly instructivecounter-example.69 Like many students of color, Attorney Coto exper-ienced her Latina identity as a compelling source of empathy for andcommitment to the marginalized communities with whose struggles andsuffering she could in many ways identify. Unlike most law students,however, Attorney Coto was able, with the help of an Echoing GreenFellowship and the sponsorship of the Florida Immigrant AdvocacyCenter, to translate her empathy into an innovative legal services project,which she founded upon graduating from the University of MiamiSchool of Law in 1997. This project is called LUCHA. Its mission is toserve battered immigrant women by providing critical legal assistanceunder "VAWA," the Violence Against Women Act, a federal law thatmakes the prevention of violence against women "a major law enforce-ment priority" and includes provisions enabling battered immigrantwomen to self-petition for permanent resident status without the cooper-ation or participation of their abusive spouse. VAWA also provides sus-pension of deportation relief; however, without access to effective legalservices, the vast majority of battered immigrant women lack the infor-mation and resources necessary to obtain this relief. Like other immi-grants, these women face barriers of language, culture and socialeconomic marginalization, but they face additional barriers because theyare trapped in relationships with men who abuse them and manipulatetheir fears of deportation in order to exert power and maintain control.

The LUCHA project is especially noteworthy because it reflects aself-conscious and self-critical effort to implement an alternative modelof legal services that is less focused on traditional litigation and morefocused on reducing the dependency and isolation that make batteredimmigrant women so desperately vulnerable. While the traditional legalservices model constructs the client as passive beneficiary of the bene-fits secured and rights vindicated through the agency of the lawyer advo-cate, LUCHA seeks to relocate and inspire agency in and among thebattered immigrant women themselves. Formed as a grassroots mem-bership organization, its strategy is to enable and promote self-determi-nation by involving battered immigrant women in a larger communitywhere mutual engagement and assistance become the vehicles of indi-vidual empowerment. LUCHA members are eligible for free legal serv-ices on immigration matters; however, to become a LUCHA member,

69. Coto, supra note 20.

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women must take a six-part educational program and commit a portionof their own time to assisting other women. The educational componentraises women's consciousness and provides them with necessary infor-mation on relevant topics in immigration law, workers' rights, domesticviolence, public benefits, victim's rights, community resources and les-sons on how to be heard by government. The mutual assistance createscommunity and organizes social networks otherwise disrupted by thedislocations of the immigrant experience and the isolation of domesticbattery.

Despite its many strengths, the LUCHA project faces two signifi-cant sets of obstacles. The first is that the structure and philosophy ofLUCHA run counter to elitist attitudes that currently structure the deliv-ery of legal services to the poor. The second is that the project is pri-marily supported by a terminal fellowship. These two obstaclesillustrate the difficulties or conundrums facing even the most creativeand entrepreneurial minority law students committed to doing publicinterest work. On the one hand, their identification with their clientcommunities can make them highly critical of the way traditional legalservices operate and eager to innovate new approaches; on the otherhand, established legal services are resource strapped and hardly inter-ested in, nor often able, to hire recent graduates to develop and imple-ment untested innovations. As a result, even the most innovativeprojects and ideas are increasingly dependent on terminal fellowshipsand grants, making these projects fragile, unstable and vulnerable to sud-den termination, even after tremendous efforts have been invested intheir success. The unsurprising result, too often, is a disillusioned disen-gagement and retreat to well-trodden paths of career development. Thus,Attorney Coto's story reflects the range and structure of possibilities andobstacles confronting recent law graduates determined to translate anti-subordination theory into meaningful practice. The reforms needed toalter this picture are systemic and profound - and attest to the fact thata struggle to increase minority participation in legal education, uncon-nected to a project of systemic reform in the delivery of legal services todisadvantaged communities, may fall short of the mark.

This is not to suggest that increasing minority participation in legaleducation and the profession is not a compelling social justice objec-tive.7" It is to say that the struggle to achieve equal justice for Blacks,

70. Enrique R. Carrasco, Collective Recognition as a Communitarian Device: Or, Of CourseWe Want to Be Role Models!, 9 LA RAZA L. J. 81 (1996) (arguing that the project of radicalreform requires connected critics acting as role models within institutional contexts of legaleducation and the profession where power is created and distributed); Phoebe A. Haddon, KeynoteAddress: Redefining Our Roles in The Battle For Inclusion of People of Color in LegalEducation, 31 NEW ENG. L. REV. 709 (1997).

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Latinas/os and other marginalized groups in Florida requires more com-prehensive reforms, reaching deep into the heart of legal education andforward into the structure of the legal profession.7 1 These reforms canbarely be imagined, let alone achieved, without the kinds of sustained,collaborative, bi-racial and bi-partisan alliances that the MPLE coali-tional initiative conjures, but has not yet fully delivered. By this, I meanalliances that are grounded in a substantive vision of justice and of therole of law and legal education in effectuating that vision, rather than acontingent convergence of interests among two factions that choose toposition themselves in a racially marked, politically partisan, zero-sumcompetition for control of a non-existent law school at the expense ofthe collaborative intergroup political alliances needed to achieve morecomprehensive and systemic reforms in the structure of legal educationand the organization of the legal profession - to the detriment of theminority interests they purport to represent and, more generally, to thecause of social, racial justice through law in this State.72

B. Inside Outside: Mapping the Internal/External Dynamicsof Oppression

The second cluster of essays maps the dynamics of internal andexternal oppression within Latina/o communities, even as it illustrates arich multiplicity of perspectives from which the theory and practice ofanti-subordination politics can be mapped around the inside/outside met-aphor.73 Professor Padilla first activates the inside/outside metaphor byfocusing our attention on the phenomenon of internalized racism.Acknowledging that Latina/o subordination is not just a function ofexternal oppression, but also of internal acquiescence in the negativestereotypes that undermine individual self-confidence and destroy col-lective solidarity, challenges LatCrit scholars to theorize the relationship

71. See Eric K. Yamamoto, LatCrit III: Introduction to Plenary Session Four, 53 U. MIAMI

L. REV. 683 (1999) (discussing SALT Action Campaign); see also Phoebe A. Haddon, Educationfor a Public Calling in the 21st Century, 69 WASH. L. REV. 573 (1994); Joan Howarth, Teachingin the Shadow of the Bar, 31 U.S.F. L. REV. 927 (1997).

72. More recently, minority legislators have reportedly put aside their differences and agreedto sponsor a joint proposal to establish two new public law schools in Florida, one at FAMU andthe other at FIU. See Mark D. Killian, FAMU/FIU Join Forces for Law Schools, Fla. Bar News,July 1, 1999, at 1. Only time will tell whether this marks the beginning of a more substantivealliance based on mutual commitment to intergroup justice or just another variation on, andinstance of, the interest-convergence politics of the past.

73. Laura M. Padilla, Social and Legal Repercussions of Latinos' Colonized Mentality, 53 U.MIAMI L. REV. 769 (1999); Abreu, supra note 17; Berta Hernndez-Truyol, LatinaMultidimensionality and LatCrit Possibilities: Culture, Gender, and Sex, 53 U. MIAMI L. REV.

811 (1999) [hereinafter Hemindez-Truyol, Culture, Gender, and Sex]; Siegfried Wiessner, iEsaIndia! LatCrit Theory and the Place of Indigenous Peoples Within Latinalo Communities, 53 U.MIAMI L. REV. 831 (1999); Roberts, BlackCrit Theory, supra note 8.

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between internal and external oppression, to familiarize ourselves withthe psychologies of liberation"4 and to put into practice the affirmationof self that Professor Abreu's essay so effectively displays.

The four essays by Professors Abreu, Herndndez-Truyol, Wiessnerand Roberts in very different, though complementary and synergistic,ways introduce a second problematic that is also usefully analyzedthrough the heuristic lens of the inside/outside dichotomy. LatCrit the-ory has from the beginning sought to articulate an inclusive and mul-tidimensional critical legal discourse, aimed at centering the previouslymarginalized experiences of Latinas/os, even as it continuously aimstoward an ever more inclusive vision and practice of anti-subordinationpolitics and intergroup justice. The initial birth and current trajectory ofLatCrit theory has in some instances been celebrated as a natural out-growth of the intersectionality and hybridity that characterizes Latina/oidentities. Latinas/os are said to be uniquely positioned to bridge thehierarchical divisions of race, ethnicity, class, immigration status, lin-guistic marginality, gender and sexual orientation because Latina/o iden-tity constitutes the intersection of all of these terms.75

It is by now, for example, a LatCrit mantra that Latinas/os come inall races and colors: we are of African, Asian, European and Indianheritage. "We speak Spanish, English, Spanglish, regional dialects andindigenous tongues."76 Latinas/os are, in this respect, a universal thatcontains all particulars, and whose liberation is therefore intricatelyintertwined and directly implicated in the liberation of all particulars.77

Against this backdrop, Professor Abreu's reminder that LatCrits mustavoid essentializing our intersectionality sounds a helpful note of cau-tion, even as Professor Hernndez-Truyol's account of the multipleforms of subordination experienced by Latina lesbians within their owncommunities, Professor Wiessner's emphasis on the oppression of indig-enous peoples within every Latina/o community across the globe, andProfessor Robert's discussion of the particularities of Black experiencesand political identity, all challenge LatCrit scholars to examine howLatinas/os construct insiders and outsiders within the very midst ofLatina/o communities. Our aim must be to avoid the practices and

74. See, e.g., IGNACIO MARTIN-BARO, WRITINGS FOR A LIBERATION PSYCHOLOGY (1996);NANCY CARO HOLLANDER, LOVE IN A TIME OF HATE: LIBERATION PSYCHOLOGY IN LATIN

AMERICA (1997); GERALDINE MOANE & JO CAMPLING, GENDER AND COLONIALISM: APSYCHOLOGICAL ANALYSIS OF OPPRESSION AND LIBERATION (1999); A GUIDE TO DYNAMICS OF

FEMINIST THERAPY (Doris Howard ed., 1986).75. Valdes, Under Construction, supra note 1, at 1106 (noting that Latina/o communities are

characterized by high degree of mestizaje or racial intermixture and internal diversity).76. Hemindez-Truyol, Building Bridges, supra note 61, at 30.77. Iglesias & Valdes, supra note 2, at 557; see also infra at pp. 622-29.

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assumptions that would replicate these insider/outsider configurations inthe articulation of LatCrit theory, the consolidation of the LatCrit com-munity and the organization of LatCrit conferences.

INTERNALIZED OPPRESSION AND THE PROBLEMATICS

OF SELF-AFFIRMATION

By invoking the notion of internalized oppression, ProfessorPadilla's essay offers a valuable point of reference from which toexplore the role of individual psychological and spiritual agency in theprocess of anti-subordination liberation praxis. Read in tandem withProfessor Abreu's account of her experiences as a Cuban immigrant,these two essays center the psychological processes through which out-sider groups both participate in and transcend their own marginalization,as well as the way individual experiences of inclusion and exclusion aremediated by culturally specific narratives of identity and community.As narratives of Latina/o group identity, these two essays project verydifferent accounts of the way the constitution of Latina/o identities isexperienced by members of different Latina/o groups.

Professor Padilla's essay calls Latinas/os to begin our anti-subordi-nation theory and praxis by acknowledging the reality of internalizedracism in Latina/o communities, a phenomenon in which, according toProfessor Padilla, "'Mexicans internalize the Anything But Mexican'mind set." For Professor Padilla, exposing instances of internalizedoppression is an important first step in any liberation struggle becauseinternalized racism is the primary reason why Latinas/os collaborate intheir own denigration, sabotage the opportunities and undermine thepositive efforts of other Latinas/os. She cites numerous examples: thefact that significant numbers of Latinas/os in California voted to denyimmigrants access to many benefits they had previously enjoyed (Prop.187), to end affirmative action in government contracting and publiccolleges and universities (Prop. 209), and to end bilingual education(Prop. 227). Latinas/os who have internalized the negative stereotypespromulgated by the white majority are alienated both from themselvesand from each other. Thus, they experience even their substantialachievements through the insecurity of an imposter and project theirself-doubts and self-hatred onto other Latinas/os.

Overcoming subordination requires overcoming this internalizedracism, and to this end, Professor Padilla offers numerous suggestions asto how Latinas/os can develop more positive self-identities and moreempowered and empowering relations with other Latinas/os, both within

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and beyond the legal academy. 8 These practices have the common ele-ments of collective solidarity, mutual assistance and sustained engage-ment in each other's struggles and aspirations - over time and acrossthe many different social, political and professional settings whereLatinas/os can make common cause in promoting each other's achieve-ments and development - including LatCrit conferences.

Professor Abreu's essay, by contrast, offers a narrative in whichCuban identity has been experienced as a source of pride, privilege andunique opportunities. She describes her own experience of being Cubanas an experience of being "where it was at." 9 Cuban identity most cer-tainly marks a whole constellation of differences between her and theAnglo majority, but in Professor Abreu's narrative, these differences areexperienced of a piece with the talent of a Luciano Pavarotti or the intel-lect of an Albert Einstein. "Difference," she notes, "is negative onlywhen it is constructed as such."8 ° Being Cuban never felt like a negativething, nor did she ever feel inferior because she was Cuban. This is notto say that she never felt excluded, stereotyped or pressured to conformto the roles and positions the majority culture allots to immigrants ingeneral and Latinas in particular. It does mean that these instances ofexclusion produced no permanent damage in her sense of self becauseshe, like many of the first and later waves of Cuban refugees, exper-ienced their presence in this country as a temporary phenomenon trig-gered by the disruptions of the Cuban revolution. For many Cubans, thememory of a privileged pre-revolutionary status in Cuba and the dreamof return, not to mention the human capital and economic resourcessome Cubans were able to take into exile, provide the social psychologi-cal resources through which many in the Cuban-American and "Ameri-Cuban" community combat their "minoritization.'

These two essays provide a unique opportunity to explore the widerange of discourses through which Latina/o identity is mapped across themultiplicity of differences and similarities that constitute us as individu-als marked by, or invested in, a Latina/o identity. Their focus is internal,self-critical and self-reflective. Though they perform the project of con-stituting a Latina/o identity in very different ways, each does so undenia-bly from the inside of a discourse, consciousness and community that areas internal to the Latina/o construct, as they are external to each other.The differences are striking. Where Professor Padilla reflects now onthe broader significance of the fact she never dated any of the Chicanos

78. Padilla, supra note 73, at 779-84.79. Abreu, supra note 17, at 794.80. Id. at 800.81. Id. (attributing the term minoritized to Celina Romany).

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with whom she went to college, Professor Abreu remembers dating onlyCuban boys in high school; where Professor Padilla speaks of Chicanas/os distancing themselves from the Spanish language, Professor Abreurecounts the concerted and assuredly draconian efforts through whichher parents ensured she would grow up bilingual; and where ProfessorPadilla speaks of Chicana/o feelings of inferiority at the margins of adominant white society, Professor Abreu recounts the decidedly criticalperspective her Cuban upbringing gave her on Anglo culture - a per-spective that shielded her from ever feeling excluded by a society intowhich she never wanted to assimilate.

Read in counterpoint, these two essays give substantive content tothe general observation that the way individuals and groups respond toexperiences of oppression and exclusion is both central to the develop-ment of personal and social agency and informed by the different cul-tural narratives we internalize.8" They also demonstrate how the projectof Latina/o liberation implicates existential questions of universal signif-icance, in this instance provoking a critical analysis of the relationshipbetween the internal experience of one's own agency and will to flourishand the external structural constraints that might otherwise determineour fate by consigning us to the margins.83 Poised between the dis-courses of free will and determinism, between the constraints of struc-ture and the possibilities of agency, is a subtextual conflict betweenthose who construct Latina/o identity through a discourse of victimiza-tion and those who eschew any connection to a victim identity.84 Readin counterpoint, the essays activate this tension because they challengeLatCrit scholars to reconcile Professor Padilla's "reconstructive para-

82. See, e.g., Elizabeth M. Iglesias, Rape, Race and Representation: The Power of Discourse,Discourses of Power, and the Reconstruction of Heterosexuality, 49 VAND. L. REV. 869, 878 n. 18(1996) [hereinafter Iglesias, Rape, Race and Representation] (challenging the characterization ofmale power in feminist theory as an inescapable force in women's lives by arguing that thecontent and exercise of agency is guided more by the different cultural narratives we internalizethan by "the reality" of the world we inhabit).

83. See Iglesias, Structures of Subordination, supra note 5 (arguing structures may notdetermine our fate but they do raise the costs of finding ourselves and each other).

84. Professor Abreu asks whether, as a Cuban, she would want to embrace a pan-ethnicLatina/o identity: "If the price of counting [as a Latina/o] is being cast in the role of victim, do Iwant to count?" Abreu, supra note 17, at 801-02. Cuban-American culture not only eschews anyconnection to a victim identity, but has also been exceedingly successful at affirming Cubanidentity in Miami and everywhere and elsewhere - so much so that Cuban self-affirmation is thesubject of internal jokes and external criticism. See, e.g., EARL SHORRIs, LATINos: A BIOGRAPHY

OF THE PEOPLE 62-76 (Avon Books, 1992). At the same time, Professor Abreu's narrativeprovides an additional and often suppressed perspective on the politics of Cuban inclusion in the"Hispanic category" when she recalls being told that, as a Cuban, she didn't really count. Abreu,supra note 17. Her experiences at Cornell University are not unique. Indeed, Cuban-Americansand Ameri-Cubans have long been excluded from the minority category for admissions purposesat the University of Miami School of Law.

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dox" with Professor Abreu's celebration of self and assertions of indom-itable agency.

The reconstructive paradox refers to the difficulties of enactingone's liberation from within a society that barely notices "the mostinsidious types of social evil because those evils tend to be soingrained."85 If Latina/o marginality and inferiority are so pervasive inour society, where or how, as Professor Westley asks, do Latinas/os findthe resources to resist acquiescing in the very power that constructs us? 6

Professor Abreu responds that Latinas/os should seek these resources ofself-affirmation and personal agency in the fact Latinas/os are alwaysboth insiders and outsiders all at once. Drawing energy and affirmationfrom those contexts in which we are insiders prepares us to combat thepower that, in other contexts, would cast us as outsiders. The problem,as Professor Abreu acknowledges, is that, unlike herself, not all Latinas/os know the experience of being inside a group that is privileged byclass, education, or social status. Not having access to an inside that ismaterially privileged or socially valued means having to create a self-and other-affirming identity from the bottom or the outside.

To be sure, Professor Abreu recognizes that "[riefusing to acknowl-edge victimization does not transmute a victim into a non-victim."87 Herpoint, as I see it, is that the impact of victimization is, in many thoughnot all instances, fluid and indeterminate. There is always some avenueof agency. And even if there isn't really, the individual who alwaysbelieves there is a way forward (or out) is more likely to flourish than anindividual who internalizes the discourses and credits the practices thatcast her as inferior or inadequate. Personal agency, like any greatachievement or failure, is from this perspective a manifestation of thewill to be and believe.88 But even here, engaging Professor Padilla'sreconstructive paradox means confronting the question: where does theoutsider, one lacking access to the sorts of material, educational or socialprivilege Professor Abreu admits to enjoying, or one, who - like theLatina lesbian of whom Professor Hernindez-Truyol writes - findsherself multiply rejected, despised and excluded from all the identitygroups or communities with which she might otherwise identify andalign herself, where does someone so positioned - at the bottom and onthe outside - find the will and resources to manifest an alternativevision from the bottom or the outside?

85. Padilla, supra note 73, at 779.86. Robert Westley, Lat Crit Theory and the Problematics of Internal/External Oppression:

A Comparison of Forms of Oppression and InterGroup/lIntraGroup Solidarity, 53 U. MIAMI L.REV. 761 (1999).

87. Abreu, supra note 17, at 801.88. See U.S. ANDERSEN, THREE MAGIC WORDS (Melvin Powers Wilshire Book Co. 1954).

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Read in this context, Professor Hernindez-Truyol's essay contrib-utes a particularly valuable critical perspective on the significance ofinternalized oppression as well as on the configuration of insider/out-sider positions within Latina/o communities. Tracking earlier accountsof the profoundly sexist constructs through which Latina/o culture struc-tures heterosexuality and consolidates familial interdependence aroundthe images of female sexual purity and maternal self-sacrifice, ProfessorHernndez-Truyol notes how Latina/o culture routinely invokes thestrictures of Catholic religiosity to regiment a form of heterosexualitythat empowers men and smothers women. Under the weight and burdenof the virgin/whore dichotomy, heterosexuality is constituted as a prac-tice of male dominance and female self-negation, while the expressionof female sexual agency or autonomy is cast as a dangerous step towarda rapid and ineluctable free fall into a life of sin, perversion and vulnera-bility to male sexual dominance.89 And yet, however oppressive thesecultural constructs may be for straight Latinas, Professor Hernmdndez-Truyol is right to insist that Latina/o culture is even more virulent in itsoppression of lesbians as lesbians.

Though all Latinas must negotiate the rigidity of the virgin/whoredichotomy every time and everywhere it is invoked to confine Latinaassertions of autonomy and self-determination within the parameters ofpermissibility dictated by heteropatriarchal normativity or to bullyLatinas into doing and being only those things a Latina can do or bewithout being labeled "a whore," nevertheless, in this context, Latinalesbians must, in addition, negotiate a cultural reality that sums itself uplike this: Mejor puta que pata. As Professor Hernindez-Truyol indi-cates, this cultural adage says it all: "The social and religious factorsand influences that render sex taboo for mujeres in the cultura Latina areintensified, magnified and sensationalized when imagining lesbian sexu-ality."90 As bad as the whore is, the lesbian is worse. The fact thatLatina lesbians have nonetheless found ways to develop and express aself- and other-affirming identity reflects the power and resilience of

89. See Iglesias, Rape, Race and Representation, supra note 82, at 929-43 (discussing impactof virgin-whore dichotomy on Latina/o sexuality and offering image of sacred prostitution asresource and example of psycho-cultural resistance), and at 918-29 (discussing gender ideologyunderlying maternal roles in Latina/o culture and arguing for a culturally nuanced psycho-analytical model of identity formation that recognizes the significance of maternal power and thecentrality of familial interdependence in Latina/o culture); see also Jenny Rivera, DomesticViolence against Latinas by Latino Males: An Analysis of Race, National Origin, and GenderDifferentials, in ADRIEN K. WING, CRITICAL RACE FEMINIsM 259, 260 (1997) [hereinafter WING,CRITICAL RACE FEMINISM] (critically analyzing Latina/o cultural constructs of "El Macho" and thesexy latina).

90. Hernndez-Truyol, Culture, Gender, and Sex, supra note 73, at 823.

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humanity asserting "I am and I count" against all odds, 91 but it does notchange the fact that the homophobia that marks her a lesbian also makesher an alien outsider - marginal and irrelevant, perverted and unnatural- everywhere and anywhere, but most painfully within her own Latina/o family and community.92

By centering the experiences of Latina lesbians, Professor Her-nindez-Truyol projects a perspective from which the anti-subordinationimperative now pending on the LatCrit agenda far exceeds the anti-sub-ordination potential of any strategies that would reduce this imperativeto a struggle against internalized oppression or would ground Latina/oliberation on the identification and reclamation of some insider positionwe have all purportedly experienced at sometime, somewhere oranother. This is not to say that these strategies, as articulated by Profes-sors Padilla and Abreu, have no anti-subordination potential. It is just tosuggest that the anti-subordination potential of these seemingly differentstrategies is limited by a common element that, but for Professor Her-ndndez-Truyol's intervention, might be easily overlooked. This commonelement is that neither strategy really addresses the problem of outsiderswithin the Latina/o community.

Professor Abreu's reflections on the insider/outsider dynamic con-jure but do not really engage the problem because she intentionally con-flates the difference between outsider status and difference itself. Whileshe may be quite right to insist that "difference" is negative only when itis constructed as such, there is still a vast difference between being "dif-ferent" in the way of a Luciano Pavarotti and being different in the wayof a Latina lesbian. The difference between these ways of "being differ-

91. See Mutua, supra note 8 (analyzing white racism as function of obsession with refusal ofBlack people to accept their dehumanization).

92. See Iglesias, Structures of Subordination, supra note 5, at 488-97 (linking Latina lesbianexperience of multiple exclusions/inclusions in different political communities to argument thatanti-essentialist institutional arrangements must be designed in ways that effectively mediate andsimultaneously enable both individual autonomy and collective action). See also FranciscoValdes, Notes on the Conflation of Sex, Gender and Sexual Orientation: A QueerCrit and LatCritPerspective, in THE LATINO/A CoNoITIoN, supra note 49, at 543 (discussing the strongheteronormativity of Latina/o cultures). For critical discussion of sexual orientation in Miami, thesite of LatCrit III, see Francisco Valdes, Below All Radars: An Ethnographic Portrait of Latinasios Sexual Orientation and the Law in the Making of Miami's "New Enclave," 33 MICH. J. L.REFORM; 5 MICH. J. RACE & L. (forthcoming 2000). See generally Francisco Valdes, Acts ofPower, Crimes of Knowledge: Some Observations on Desire, Law and Ideology in the Politics ofExpression at the End of the Twentieth Century, I IowA J. GENDER, RACE & JUSTICE 213, 223-28(1997) (discussing various strategies focused on increasing sexual minority visibility as central toQueer politics and self-empowerment); Francisco Valdes, Sex and Race in Queer Legal Culture:Ruminations on Identities and Interconnectivities, 5 So. CAL. L. REv. & WOMEN'S STUD. 25(1995) (proferring "interconnectivity" as a strategic concept enabling intra- and inter-groupcoalitions that accept difference and make respect for it integral to antisubordination theory andpraxis).

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ent" is precisely the fact that some differences, like sexual orientation,race and gender are in fact constructed as negative. As a result, the pro-posal to ground Latina/o liberation on the self-valorization of one's dif-ference rings a little hollow precisely because the project of self-valorization smacks of other-world psycho-spiritual realization, ratherthan the material and institutional transformation of the real-world con-figurations of power and privilege that are currently invested in main-taining these negative constructions of difference - precisely becausethese constructions help reproduce and legitimate hierarchical relations,both within and against Latina/o communities, in profound and materialterms.

Professor Padilla's discussion of internalized oppression skirts thesame problem in a different way. This is because the deconstruction ofinternalized oppression addresses a pycho-cultural dynamic in which theself is pitted against itself. In the case of Latina lesbians, overcominginternalized oppression may help the Latina lesbian, like other victims ofrelentless oppression, to resist the practices and discourses of subordina-tion and exclusion and may thus enable her to revalue and respect bothherself and other lesbians, but it does not eliminate the reality ofhomophobic oppression in la cultura Latina precisely because, and tothe extent, this oppression is embedded in the very different dynamic ofthe self against its "other."

In this context, what Professor Herndindez-Truyol's interventionsuggests is that anti-subordination theory and praxis must make a cleardistinction between internalized and internal oppression within Latina/ocommunities: the first dynamic targets sameness; the second targets dif-ference. The first is activated by self-hatred and self-doubt, the secondby hatred or fear of the Other. Overcoming the first, requires that welearn to value ourselves. Overcoming the second requires that we learnto value others. Learning to value ourselves does not automaticallytranslate into the valuing of others, particularly "Others," in whose dif-ference Latina/o culture has inscribed its most virulent prejudices andwhose acceptance and full inclusion within the Latina/o communitywould threaten and profoundly destabilize the routine practices andingrained ideologies through which traditional relations of power anddominance are culturally performed and legitimated. It therefore fol-lows that self-valorization can be only part, though - as ProfessorsAbreu and Padilla powerfully demonstrate - an important part, of theanti-subordination agenda that drives LatCrit theory and practice. Theother part requires that, in learning to value Others, who are at the bot-tom or on the outside of their particular contexts, we learn to value our-selves in a different way - in a way that does not reproduce the

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prejudices and hierarchies of the various supremacies we seek totransform.

DECONSTRUCTING RACIAL HIERARCHIES AND DE-CENTERING HISPANIC

IDENTITIES IN LATCRIT THEORY

Like Professor Hernndez-Truyol, Professor Wiessner calls onLatina/o communities to practice anti-subordination principles inter-nally.93 His essay opens by recounting a vision of a world order basedon human dignity, inclusion and respect for diversity. In this imaginedorder, the anti-subordination agenda articulated by Latinalo communitiesraises compelling claims of justice. Nevertheless, he finds fault in thefact that LatCrit scholarship has seemingly turned a blind eye to theplight of indigenous peoples. 94 This asserted failure to engage the strug-gles of indigenous peoples jeopardizes the legitimacy of Latina/odemands for equal treatment and respect. In Professor Wiessner'swords, "If we do not respect the legitimate claims of others, we forfeitour own."95 Indeed, the struggles of indigenous peoples are particularlyappropriate matters for LatCrit attention precisely because they impli-cate a whole array of current and historical discrimination and exploita-tion by Hispanic Latinas/os, both in Latin American countries, whereHispanic Latinas/os constitute a dominant class, and elsewhere andeverywhere Latinas/os display the conscious and unconscious racismthat is endemic in Latinalo cultural sayings and practices toward indige-nous peoples.96 Just as Latinas/os resist our subordination within Anglosociety, Professor Wiessner's objective is to challenge the subordinationof indigenous peoples within Latinalo society.

Professor Weissner makes his case by examining the legacy of His-panic conquest in Latin America. This legacy is a history of physicaland cultural genocide. From the initial encounter with the Spanish Con-quistadors through the more recent history of military dictatorships,

93. Wiessner, supra note 73.94. Professor Wiessner bases this assertion on the fact that "a recent 'Annotated Bibliography

of Latino and Latina Critical Theory' manages to painstakingly describe seventeen distinct

'themes' of 'critical Latino/a scholarship,' and fails to mention the indigenous condition in any

one of them." Id. at 838. But see Luz Guerra, LatCrit y la Des-colonizacidn: Taking Coldn Out,

19 CHICANO-LATINO L. REv. 351 (1998); Iglesias & Valdes, supra note 2, at 568-73 (reflecting on

themes inspired by plenary panel on indigenous peoples at LATCRrr II).95. Wiessner, supra note 73, at 837.96. Professor Wiessner recounts an incident in which a Chilean friend responded to an

automobile incident in Miami by hurling an anti-Indian epithet at the other driver. Other LatCritscholars have noted the anti-Indian prejudices expressed in Latina/o cultural practices. See, e.g.,Elvia Arriola, Voices from the Barbed Wires of Evil: Women in the Maquiladoras, Latina Critical

Legal Theory and Gender at the U.S. -Mexico Border, 49 DE PAUL L. REV. 3 (forthcoming 2000)(recounting anti-Indian references invoked to deter childhood conduct deemed inappropriate for amuchachita).

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indigenous peoples in Latin America have been tortured, massacred,robbed, enslaved and displaced from their communal lands by the bru-tality of scorched earth military campaigns, international developmentprojects, U.S. sponsored drug enforcement search and destroy missions,and multinational companies seeking free access to their naturalresources. Theirs is a struggle for physical and cultural survival, for self-determination and for land. Their current legal status in countries likeBrazil, Venezuela, Nicaragua and Mexico reveals the legal legacy of theHispanic conquest as well as the increasing influence and impact of neo-liberal hegemony in Latin America. In Brazil, for example, ProfessorWiessner notes that indigenous peoples are still subject to a specialregime of tutelage, which casts them as "relatively incapacitated" andplaces them under the guardianship of the Brazilian state. Governmentdecrees initially promulgated to protect indigenous rights to their ances-tral lands have been rolled back by more recent decrees designed toafford private commercial interests the right to contest Indian landdemarcations in an adversarial process. By outlining the present daylegal struggles of indigenous peoples in the various countries of LatinAmerica, Professor Wiessner reveals the continued complicity of LatinAmerican elites in the expropriation of these subjugated, but resurgentIndian nations, even as he notes with approval the legal advances beingmade in some countries like Colombia and Chile.

This is not to say that Professor Wiessner's analysis is beyond criti-cism. Perhaps to underscore the compelling need for Hispanic Latinas/os to recognize their own complicity in the subordination of indigenouspeoples, Professor Wiessner structures his argument around a compari-son of the treatment indigenous peoples have received from Anglo andHispanic conquerors. In this comparison, Hispanics fair poorly.According to Professor Wiessner, Anglo conquerors were more civilizedand less brutal than Hispanic conquerors. 97 To support this brash gener-alization, Professor Wiessner quotes the work of Professor StevenMcSloy.98 The problem is that nothing in Professor McSloy's text sup-

97. Wiessner, supra note 73, at 840. "By contrast [to Hispanic colonization], the Britishcolonization relied much less on brute force and the destruction of indigenous political structuresand society; its subjugation strategies included to a much larger degree the mechanisms ofnegotiation and persuasion." Id.

98. Id. at 840 n.38 (citing Steven P. McSloy, "Because the Bible Tells Me So": ManifestDestiny and American Indians, 9 ST. THOMAs L. Rav. 37, 38 (1996)). More specifically, he quotesMcSloy's account of the way American Indian lands were taken:

How were American Indian lands taken? The answer is not, as it turns out, bymilitary force. The wars, massacres, Geronimo and Sitting Bull - all that was reallyjust cleanup. The real conquest was on paper, on maps and in laws. What thosemaps showed and those laws said was that Indians had been "conquered" merely bybeing "discovered."

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ports Professor Wiessner's comparative assessment. The fact that the"the wars, massacres, Geronimo and Sitting Bull . . .[were] really justclean up," hardly suggests that the colonization of the Northern parts ofthe American continent was any more humane than the conquest of theSouth. If anything, the comparison Professor Wiessner activates sug-gests instead that the "British colonizers " were more unitary and lessinternally conflicted about their colonizer status. While Spanish colo-nizers struggled against internal opposition by Spanish religious elites,who deployed "the natural law theories of St. Thomas Aquinas" to com-pel recognition of indigenous peoples as subjects with inalienable rightsunder the law of nations, the "British" colonization was total - in thelaw, as much as in the flesh.99

My point is not to defend the Spanish conquest of Latin America,or to suggest that the treatment of indigenous peoples was, or continuesto be, anything but brutal. My point is rather to use Professor Wiess-ner's analysis as a reference point for further reflection on the commit-ments implicit in the LatCrit aspiration to promote an anti-subordinationpolitics that is broadly inclusive and relentlessly anti-essentialist, as wellas to reflect further on the politics and practice of intergroup compari-sons. From this perspective, there is no question that Professor Wiess-ner's essay activates a problematic that often is organized around aninside/outside dichotomy and is most immediately apparent in debatesover who has standing to criticize the practices of oppression and inter-nal hierarchies within a subordinated community. This is because Pro-fessor Wiessner's pointed and comprehensive account of the wayindigenous peoples have been exploited, marginalized and oppressed"within the Latino-Latina midst" is in no sense a self-critical interven-tion, as Professor Wiessner at no point claims a Latina/o identity. Thus,his contribution provides a valued opportunity to reflect not only on thesubstance of his criticisms, but also on the way LatCrit theory shouldposition itself in debates over standing to criticize the reproduction ofhierarchies within Latina/o communities. To this end, a LatCritresponse to these sorts of criticisms needs to take note that the practiceof coding criticism as external interventionism, like the discourses ofcultural relativism, privacy, sovereignty and the individualization ofguilt and innocense, are standard tropes, routinely invoked by elites theworld-over to deflect criticism from their abusive and exploitative prac-

Id.99. For an alternative perspective on the relative virulence of anti-Indian racism in Latin

American and U.S. cultures, see, for example, Martha Menchaca, Chicano Indianism, in THE

LATINO/A CONDITION, supra note 49, at 387 (recounting how racial caste system was dismantledin Mexico by the 1812 Spanish Constitution of Cadiz, only to be reinstated by U.S. racial laws in

the territories ceded by Mexico after the Mexican War of 1846).

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tices, as well as from their unearned privileges.' 00 Thus, it is imperativethat LatCrit scholars resist the tendency to dismiss external criticismsautomatically, even as we reflect critically both on the differencebetween internal and external criticism and on the way we draw theinternal/external line in responding to those particular criticisms wemight want most to suppress.

At the same time, the analytical and empirical imprecision withwhich Professor Wiessner juxtaposes the colonization of North andSouth America, as well as his mere passing reference to the substantialefforts currently underway to incorporate indigenous peoples into Lat-Crit discourse should give self-constituted "outsiders" reason to pausebefore launching their well-intentioned criticisms. At a minimum, suchcriticisms need to avoid inflammatory over-generalizations that casttheir comparisons in broad, ambiguous and unsubstantiated terms. Suchcomparisons do little to enlighten, though much to confuse the issuesand inflame the politics of reaction and division. Nevertheless, theunderlying truth of Professor Wiessner's broader argument warrantsserious LatCrit attention. Indeed, read through the heuristic of theinsider/outsider dichotomy already thematized in the preceding essaysby Professors Padilla, Abreu and Hernindez-Truyol, his essay callsattention to, and prompts reflection on, the fact that none of these essaysaddress the way their analysis might be relevant to the particular exper-iences of indigenous peoples, nor for that matter of Black Latinas/os andAsian Latinas/os - though these group experiences would certainlyenrich our understandings of the social-psychological processes of inter-nalized oppression as well as expanding our analysis of the way "differ-ence" is used to configure insider/outsider positions within and betweenLatina/o communities.

To give just one brief example of the way attention to the particularrealities of indigenous peoples might substantially enrich the analysis,even as it helps clarify the scope and meaning of LatCrit commitment toanti-essentialist anti-subordination theory consider the following: WhenProfessor Padilla writes of internalized racism, she speaks specifically ofthe practices through which Chicanas/os undermine themselves and eachother. The very concept of internalized oppression is activated around animagined inside/outside. Internalized racism is not external oppressionbecause it occurs within a delimited community, amongst its members,pitting insider against insider. Asking how this analysis might be rele-

100. See, e.g., Adrien K. Wing, Critical Race Feminism and the International Human Rights ofWomen in Bosnia, Palestine and South Africa: Issues for LatCrit Theory, 28 U. MIAMI INTER-AM.

L. REv.337 (1996-97) (noting that male elites often resist compliance with basic human rightslaws prohibiting discrimination against women by declaring their sexist customs and traditionsessential elements of their culture).

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vant to articulating a LatCrit perspective on the anti-subordination strug-gles of indigenous peoples means asking how the histories ofenslavement, exclusion and extermination, as well as the currentmarginalization of indigenous peoples, both beyond and within theUnited States, would figure in a theory of Chicana/o internalizedoppression? The discourse of Latina/o hybridity and mestizaje offersone ready response.' °' In this response, the subordination of indigenouspeoples figures centrally in the dynamics of internalized oppressionbecause it is the indigenous aspect that makes Chicana/o identity asource of self-hatred and self-doubt.

The important point, however, is to see how this response fallsshort of the anti-essentialist commitments that ground the LatCrit pro-ject, even as it perhaps misses the mark of Professor Wiessner's criti-cism, for Professor Wiessner is not talking about the subordination ofindigenous identities, but of peoples. Grounding LatCrit concern fortheir struggles in the discourse of Latina/o hybridity suggests that indig-enous peoples are inside the Latina/o construct, and important to theLatCrit project, not in and for themselves, but rather because their exper-iences and realities have been important to the construction of Latina/oidentities. To be sure, recognizing the indigenous and other racial mix-tures that oftentimes are repressed in the constitution of Latina/o self-identifications has been one of the important advances achieved throughthe discourse of mestizaje; nevertheless, the anti-essentialist commit-ments underlying the LatCrit movement's aspiration to articulate a poli-tics of intergroup justice will eventually require even further progress.

Indeed, fully recognizing and embracing the struggles for justice ofindigenous peoples challenges the LatCrit movement to develop thecritical discourses and implement the intergroup practices that willenable the LatCrit community to pursue three important objectives,simultaneously and in tandem: to continue articulating an anti-essential-ist critique of the way the institutionalization and cultural performancesof white supremacy marginalize different Latina/o communities in dif-ferent ways, to de-center Hispanic identity in our conceptualization ofLatina/o communities so that we can better understand the particularexperiences and perspectives of minority groups within our communi-ties, and ultimately to recognize and embrace the universal claims ofright - to equality and dignity - that are everywhere constituted in thedemand for justice and desire for inclusion expressed by every groupoppressed by the articulation of white supremacy, both within andbeyond the United States. Ultimately, the struggles of indigenous peo-

101. See Wiessner, supra note 73, at 832 n.5 (quoting Margaret Montoya, Masks and Identity,in THE LATINO/A CONDITION, supra note 49, at 40).

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ples, like the struggles of Black and Asian peoples, are matters of Lat-Crit concern, not so much because Latinas/os are a hybrid peoplecomposed of all these elements, but because recognizing and transform-ing the particularities of injustice is the only viable strategy for achiev-ing substantive justice. 102

Read through the prism of these three objectives, the essays byProfessors Padilla and Abreu make significant contributions to the Lat-Crit project, understood initially as a movement to articulate the particu-larities of Latina/o perspectives and experiences within the regime ofwhite supremacy and to promote a pan-ethnic Latinalo political identitythat can mediate and transcend the politics of division that is too oftenactivated around the differences between Cuban-Americans, PuertoRicans and Mexican-Americans. 10 3 They want to make Latinas/os"insiders" even as they make "the inside" a place worth inhabiting. But,as Professors Hernindez-Truyol and Wiessner remind us, "the inside"we create must aspire always and everywhere to provide a home forthose at the bottom of their particular contexts because the logical andpolitical implications of the LatCrit commitment to anti-essentialistintergroup justice, both encompass and transcend the politics of Latina/opan-ethnicity and hybridity.

In this vein, Professor Roberts' contribution appropriately closesthis cluster of essays. 04 Her essay is based on remarks she delivered atLATCRIT III in a colloquy programmed to open the focus group discus-sion entitled From Critical Race Theory to LatCrit to BlackCrit?Exploring Critical Race Theory Beyond and Within the Black/WhiteParadigm.'05 The purpose of this focus group was to expand the param-eters of LatCrit discourse by triggering a critical analysis of the differentways in which the Black/White paradigm of race truncates and essential-izes the liberation struggles of Black peoples, for example, by deflectingattention from the intra-group hierarchies and diversity that divide "theBlack community," as well as by obstructing the cross-racial and multi-racial solidarities that might otherwise coalesce around issues of imperi-alism, colonialism, national origin discrimination, language rights,immigration policy, gender and sexual orientation. The hope was that

102. See Iglesias & Valdes, supra note 2, at 555-61 (noting attention to particularities criticalto actualization of substantive justice); Enrique R. Carrasco, Opposition, Justice, Structuralismand Particularity: Intersections Between LotCrit Theory and Law and Development Studies, 28U. MIAMI IIrJER-AMER. L. REV. 313 (1997) [hereinafter Carrasco, LatCrit Theory and Law andDevelopment] (emphasizing the importance of particularity in LatCrit theory).

103. See Johnson, Latino Legal Scholarship, supra note 50; Ediberto Romin, CommonGround: Perspectives on Latino-Latina Diversity, 2 HARV. LATINO L. REV. 483 (1997).

104. Roberts, BlackCrit Theory, supra note 8.105. For a description of the substantive themes of the focus group, see <http://

nersp.nerdc.ufl.edu/-malavet/latcrit/archives/Iciii.htm>.

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by creating a space and intentionally focusing attention on the sorts ofintra-Black particularities constituted in and through the different histo-ries, perspectives, political ideologies and transnational identities ofBlack Latinas/os and Caribbeans, we might begin the process of concep-tualizing the critical methodologies, thematic priorities and substantiveareas of law and policy that might form the center of a post-essentialist'BlackCrit" discourse, which is just to say, a critical discourse thatengages the particularities of Black subordination from an anti-essential-ist perspective.

LatCrit stakes in such a project are high, for while LatCrit theorywas itself born of the critical need to move beyond the essentialism ofthe Black/white paradigm toward a more inclusive theoretical frame-work that focuses, broadly and comprehensively, on the way the institu-tionalization and cultural performance of white supremacy affect allpeoples of color, though in different ways, still the political impact ofuncritically abandoning the Black/white paradigm would be indefensiblyregressive.1"6 To be sure, Asian and Latina/o communities have beenmarginalized by the Black/White paradigm and our increasing andmutual recognition of the commonalities that construct Asian andLatina/o subordination are among the most powerful new insights ena-bled by the anti-essentialist movement in Critical Race Theory. 107 Nev-ertheless, the inter-group solidarities this knowledge enables us toimagine and pursue cannot be promoted at the expense of our theoreticaland political commitments to combating the particular forms of racismexperienced by Black people, both in this country and abroad. If LatCrittheory were to abandon uncritically the Black/White paradigm, it wouldmarginalize a substantial portion of the Latina/o community and betrayour aspirations to substantive intergroup justice. Thus, the objectivemust be to move our understanding of white supremacy progressivelybeyond the Black/White binary of race, even as we acknowledge the

106. See Iglesias & Valdes, supra note 2, at 562-74 (urging LatCrit scholars to remaincognizant and vigilant lest in rejecting the Black/White paradigm, we uncritically equate Blackand white positions within a paradigm that emerged from the very real oppression of whites overBlacks, as well as by non-Black minorities who have sought their own liberation in the delusionsof a white identity); Chris lijima, The Era of We-construction: Reclaiming the Politics of AsianPacific American Identity and Reflections on the Critique of the Black/White Paradigm, 29COLUM. HUM. RTS. L. REv. 47, 50 (1997) (warning that moves beyond the Black/White paradigmmay be coopted by racist status quo); Taunya Lovell Banks, Both Edges of the Margin: Blacksand Asians in Mississippi Masala, Barriers to Coalition Building, 5 AsIAN L.J. 7 (1998)(articulating critique of "the middle position" as constituted by pervasiveness of Black/Whiteparadigm in both dominant and minority consciousness and practices and advocating coalition-building among minority groups as alternative); see also Mutua, supra note 8.

107. See, e.g., Iglesias, Out of the Shadow, supra note 30, at 351-72 (exploring points ofcommonality between emerging Asian Pacific American Critical Legal Scholarship and LatCrittheory).

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particular and virulent forms of anti-Black racism that are institutional-ized and expressed in virtually every society across the globe, includingLatina/o communities. Doing so requires that we center the particulari-ties of Black subordination long enough to recognize the way anti-Blackracism operates in Latina/o communities and the way the struggles ofBlack peoples, who are not Latina/o, are also implicated in the LatCritproject.

From this perspective, Professor Roberts essay makes two pointsworth further reflection. Her first point is to challenge a common misun-derstanding of the meaning of "essentialism" in the anti-essentialist cri-tique. White feminist legal discourse, for example, has construed thiscritique as an attack on any analysis that focuses exclusively on theexperiences of one group of women without also addressing the exper-iences of other groups of women or, indeed, of all women in general.This misunderstanding may be genuine or opportunistic, but in eithercase, it makes it easier to deflect the impact of any analysis that focuseson the particular forms of oppression experienced by any particulargroup of women of color. Thus, when Professor Roberts writes or talksabout the particular experiences of pregnant Black women in a racistcriminal justice system, her analysis is at times discounted on thegrounds that it does not discuss the experiences of other pregnantwomen in analogous situations. But, as Professor Roberts argues, theanti-essentialist critique, which launched Critical Race Feminism as areaction against the exclusive attention feminist legal discourse was thengiving the problems of white women, did not attack the practice of stud-ying the problems of a particular group of (white) women, but rather thepractice of assuming that this particular group represented all women.,08

As Professor Roberts puts it, "[w]riting about Black people is not essen-tialist in and of itself. It only becomes essentialist when the experiencesdiscussed are taken to portray a uniform Black experience or a universalexperience that applies to every other group."' 0 9

This important insight has profound implications for the way theLatCrit movement should understand and pursue the practice of produc-ing anti-essentialist, anti-subordination critical legal scholarship andwas, in fact, a driving force behind the initial decision to organize the"BlackCrit" focus group discussion at LatCrit III. The purpose of thisfocus group was to operationalize, within the LatCrit community andconference setting, a vision of intergroup solidarity and substantive jus-tice that is categorically different from the vision that currently links theanti-essentialist critique to a particular, and ultimately unsatisfactory,

108. See WING, CRITICAL RACE FEMINISM, supra note 89.109. Roberts, BlackCrit Theory, supra note 8, at 857.

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representation of both the meaning and the practical and political impli-cations of a commitment to "multiculturalism." This alternative vision isreferenced in, but not fully explained by, the call for "rotating centers"because the aspirations embedded in the practice of rotating centers aretoo easily confused with and overshadowed by an ingrained tendency tohear the call for critical attention to the particularities of subordinationexperienced by different groups as a call that can only be answeredthrough the Balkanization of the universals that might otherwise bind usin solidarity.1"'

Against this backdrop, the decision to feature a focus group discus-sion exploring the necessity and possibilities of launching a new inter-vention in outsider scholarship provisionally styled "BlackCrit Theory,"was to perform a public event that, thereafter, would provide a meaning-ful point of reference for articulating a different vision of the way theanti-essentialist critique can (and should) mediate the relationshipbetween universal and particular. The easiest way to explain this is tocontrast the structure of the BlackCrit focus group at LatCrit III with theparadigm model through which the commitment to multiculturalism hasbeen performed in other contexts.Il' Rather than organizing LatCrit IIIas a conference dedicated to Hispanic Latina/o issues and relegating dis-cussion of the particularities of Black subordination to one of a numberof concurrent sessions, in which different subgroups separate to discuss"their own" particular issues, the BlackCrit focus group was designed tocenter the problem of Black subordination in LatCrit theory and to inviteall participants to focus on these particular problems, with the implicitunderstanding that these particular problems are of universal concernfor all LatCrit scholars committed to an anti-subordination agenda basedon substantive intergroup justice, and with the further understanding thatfuture LatCrit conferences would, in similar fashion, seek to center the

110. See, e.g., Cho, Essential Politics, supra note 15 (expressing concern that the "anti-essentialist critique" may undermine collective solidarity and political engagement); see also A.Sivananda, All that Melts into Air Is Solid: The Hokum of New Times, RACE & CLASS, Jan.-Mar.1990 (expressing concern that the post-modem politics of proliferating subject positions forsakescommitment to universality and solidarity); cf Iglesias, Structures of Subordination, supra note 5,at 486-502 (challenging notion that proliferation of political identities undermines pursuit of"common good" and arguing, instead, that the genuine common good can only be discovered andachieved through the reconfiguration of anti-democratic institutional power structures thatsuppress the self-representation and expression of multidimensional and intersectional identities).

111. For example, in the labor context, the commitment to racial and/or gender equality hassometimes been expressed through the formation of separate racially marked or gender basedcaucuses within the broader collectivity, where members of the subgroup meet separately todiscuss their particular problems and needs. For a critical analysis of the pros and cons associatedwith different institutional structures or arrangements that might be used to operationalize acommitment to anti-essentialist intergroup justice, see Iglesias, Structures of Subordination, supranote 5, at 478-86.

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particularities of subordination confronting other marginalized and inter-sectional minority identities.

This latter point is crucial. By linking critical analysis of the partic-ularities of subordination experienced by different groups to the practiceof "rotating centers," the BlackCrit focus group at LatCrit III clearlyillustrates why the production of anti-subordination theory and praxismust be conceptualized and performed as a collective project, reflectedin and strengthened by our mutual commitment, across our many differ-ences, to remain engaged in each other's issues over time. As ProfessorRoberts rightly notes, no one need, nor ever can, focus on everything atonce, but the struggle against white supremacy requires that we - eachindividually and all collectively - increasingly learn to see and combatthe multiple structures and relations through which the practices and ide-ologies of white supremacy have constructed the particular forms of sub-ordination confronted, in different ways, by all peoples of color, bothwithin and beyond the United States. Thus, the common project totransform the realities of white supremacy can only be realized througha collective and collaborative effort, in which we teach each other aboutthe similarities and differences in the way white supremacy operates inour various communities. This by necessity requires a practice of "rotat-ing centers," even as this practice, in turn, requires a mutual commit-ment to remain engaged over time. Only members of a communitycommitted to fostering an inclusive and collaborative anti-subordinationproject for the long haul can afford to decenter their own compellingproblems to focus, instead, on the problems confronting people otherthan themselves.

It follows, therefore, that the practice of rotating centers can operateeffectively only in the context of a genuine community, whose mem-bers' commitment to remain engaged for the long haul can foster thekind of continuity needed to ensure that "the center" does, in fact, rotatefrom year to year and from venue to venue. It is this kind of communitythat the decision to feature a BlackCrit focus group at LatCrit III wasdesigned to perform and promote. However, despite these seeminglyunobjectionable intentions, the BlackCrit conference event generatedsignificant controversy from two distinct perspectives, each of whichsheds substantial light on the many challenges awaiting our collectiveattention. From one end, the critique was that, in centering Black subor-dination, LatCrit III was on the verge of taking "the Lat" out of LatCritTheory." 2 From the other end, the critique was that, by centering Blacksubordination, LatCrit III was on the verge of assuming an umbrellaposition that was more appropriately left to the more universal and

112. See, e.g., Mutua, supra note 8 (reporting discussions at LatCrit III).

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inclusive venue of Critical Race Theory.1"3 Both of these critiques,however, miss the point of featuring the BlackCrit focus group at LatCritIII - though they do so in different ways.

The first critique misses the point because it essentializes Latina/oidentity in a way that threatens to reproduce, within LatCrit theory, theracial and ethnic hierarchies that pervade Latina/o communities and cul-ture and that are fundamentally at odds with any anti-essentialist com-mitment to anti-subordination politics. Latinas/os, to repeat yet again,come in every variety of race and ethnicity. LatCrit theory cannotmarginalize the particular experiences of Black subordination, withoutpresupposing, among other things, that Black Latinas/os are somehowless fully Latina/o, than Hispanic Latinas/os, and that therefore theirproblems are somehow less central to the LatCrit project.

The second critique misses the point because it tends to reinscribethe project of generating anti-subordination theory and praxis within amodel of multiculturalism that continues to cast Black subordination asprimarily "a Black thing," Hispanic subordination as "a Hispanic thing,"Asian subordination as "an Asian thing," and so on and so forth. Thisstructure has been tried, and the consciousness it simultaneously reflectsand constructs has failed to enable the kinds of intergroup engagementand solidarity necessary for the task at hand: the deconstruction of whitesupremacy and reconstruction of a sociolegal reality grounded on a com-mitment to substantive intergroup justice. Indeed, it is all but obviousthat this kind of structure and consciousness can promote little inter-group understanding and collaborative progress precisely because the"discussions" it generates are hardwired to flounder in arguments aboutwhose particular subordination ought to be addressed first: in the initialinstance, when the particularities separate into groups that inevitablywill include multiple and intersectional identities, like the Black Latina/o or the Japanese Peruvian; and in the second instance, when these sepa-rate particularities regroup to articulate a universal agenda in a commonsetting.

This is where Professor Robert's second major point makes heressay a welcomed and timely intervention. Professor Robert's secondpoint illustrates the otherwise suppressed realities that make Black iden-tity an intersectional space, where group affiliation can be seen as a mat-ter of political choice. She describes three different contexts in whichher self-identification was fluid and in flux: in choosing to identify asAfrican American, rather than as West-Indian; in choosing to identify as

113. See, e.g., Phillips, supra note 7, at 1256 (representing Critical Race Theory Workshop as"a place where, among other things, the experiences of all groups of color are articulated andwhere narrow conceptions of group interest are critiqued").

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Black, rather than as bi-racial or multi-racial; and in choosing to identifyas the daughter of a Jamaican immigrant during a debate with PeterBrimelow. I4 To Professor Robert's credit, each of these acts of self-identification reflects and performs, in different ways and from differentperspectives, a commitment to anti-subordination solidarity. This isbecause the West-Indian identity has often been embraced by CaribbeanBlacks as a mark of distinction that separates them from and seeks toraise them above the subordinated status of Black Americans in theUnited States;' 15 the bi-racial or multi-racial identity category has some-times operated to privilege whiteness and other non-Black identities inthe configuration of Black identity among people marked by non-Blackracial mixtures; and finally, because claiming an immigrant identity can,in some contexts, position Black Americans in solidarity with the vic-tims of the virulent nativism that seeks to consolidate a supposedly"multicultural" American identity by purchasing inclusion for BlackAmericans at the expense of precisely those immigrants most vulnerableto exclusion: the racialized and impoverished peoples of the ThirdWorld.

Professor Robert's discussion of the different political identitychoices she has made in different contexts challenges the notion of aunitary Black identity and thereby strengthens the case for the practiceof "rotating centers," not only at LatCrit conferences, but at every gath-ering committed to the production of anti-subordination theory and prac-tice through identity-based critique - whether those gatherings areorganized under the auspices of the Critical Race Theory workshop or inother venues such as those emerging from the recent development ofAsian Pacific American Critical Legal Scholarship." I6 Viewed from thisperspective, the practice of rotating centers is, indeed, a move to claim auniversal perspective for LatCrit theory, but only as an expression of theprofoundly revolutionary possibilities embedded in the anti-essentialistcritique. These new possibilities of thought and action will fully emergeonly when enough us learn to see that every particular identity groupconstitutes a universal because every particular group includes memberswhose multiple and intersectional identities link each group to everyother group. Just as Latina/o identity includes Blackness, certainly theconverse is equally true that Black identity includes Latinidad; just as

114. See PETER BRIMELOW, ALIEN NATION (1995) (articulating a nativist agenda).115. See, e.g., MARVIN DUNN, BLACK MIAMI IN THE TWENTIETH CENTURY 99 (1997) (noting

that Black Bahamians, proud of their British roots, "thought themselves to be less servile thanAmerican-born Blacks in Miami").

116. See Symposium, The Long Shadow of Korematsu, supra note 27; see also Iglesias, Out ofthe Shadow, supra note 30 (offering one vision of the intellectual and political agenda that mightbe collaboratively pursued at the intersection of APACrit and LatCrit theory).

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Latina/o identity includes Asian, Indigenous and European identities, sotoo it is true that each of these identities include all the others.

This realization has profound implications for the future develop-ment of identity politics and positions the anti-essentialist critiquebeyond rather than, as often is charged, at the center of the politicalfragmentation and Balkanization that threatens to sunder every universalinto a proliferation of increasingly atomized and ineffectual particulari-ties. This is because the anti-essentialist critique makes it possible to seethat all the particular groups into which we might possibly separate areinhabited by multiple and intersectional identities. Any particular groupthat purports to practice anti-essentialist politics internally will, bynecessity, have to treat the distinct problems of group members markedby intersectional identities as equally valid and central to the anti-subor-dination agenda defined by the group. This is simply to say, for exam-ple, that just as LatCrit theory must engage the problems of Blacksubordination because Latina/o identity includes Blackness, so too ananti-essentialist BlackCrit theory would have to confront the problemsof Latina/o subordination because Black identity includes Latinidad.And yet, by doing so, each group would find that its pursuit of a genu-inely anti-essentialist politics promises, always and everywhere, toreconstitute the group as a universal that contains all particulars. Thiswould, however, be a very good thing. Indeed, the "only" thing stillblinding us to the reality that every particularity constitutes the univer-sal, albeit from a different perspective and in a different configuration, isthe essentialist assumptions embedded in the imperatives of organizinghierarchical power relations through practices of inclusion and exclusionand the ingrained tendency, both within and between our various com-munities, to construct our collective identities and solidarities around aninside/outside dichotomy.1 17

117. See, e.g., Guadalupe T. Luna, Zoo Island: LatCrit Theory, Don Pepe and Seflora Peralta,19 CHICANO-LATINO L. REV. 339, 341 (1998) (locating Chicana/o subordination in the ideologicaland rhetorical struggles between universal and particular through which the white perspective iscast as universal in contrast to the particularity of the Chicana/o perspective); Iglesias, Structuresof Subordination, supra note 5, at nn. 21 & 22 and accompanying text (implying need for gestalt-shift that would enable recognition of the way women of color constitute a universal perspective).See also generally Francisco Valdes, Queer Margins, Queer Ethics: A Call to Account for Raceand Ethnicity in the Law, Theory and Politics of "Sexual Orientation," 48 HASTINGS L.J. 1293(1997) (urging similar points in the context of Queer legal theory). See also Valdes, "OutCrit"Theories, supra note 7.

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II. SUBSTANTIVE SELF-DETERMINATION: DEMOCRACY,

COMMUNICATIVE POWER AND INTER/NATIONAL

LABOR RIGHTS

Part II takes up three clusters of essays that appear at first glance tohave little in common: the first cluster focuses on the transition to andconsolidation of democracy in regions as diverse as the Caribbean andEastern Europe; the second cluster centers the struggle over languagerights and communicative power, while the third cluster takes up a broadrange of issues exploring the way Latinalo identities and lived realitiesshould figure in the transformation of domestic and international laborrights regimes. Despite their differences, these essays reveal a commontension. In each instance, the struggle for self-determination confronts aseemingly irreconcilable and pervasively articulated antagonismbetween freedom and order, stability and plurality, uniformity andchaos. This antagonism has been most clearly articulated in democratictheory as the so-called "crisis of governability.""' 8 But this underlyingantagonism is revealed everywhere the claim to individual or group self-determination threatens inherited patterns and identities. It is evident, forexample, in the political struggle over language rights and the paranoidnativism of the English-Only movement, in which the domestic prolifer-ation of languages and cultures is cast as threat to the unity and integrityof the American national identity.' 19 It is evident also in the anti-polit-ical structure of the labor rights regime established in this country. 120 Bytaking up these various issues, the essays in these three clusters illustratehow the universal struggle for self-determination is reflected in and

118. The theory is that mass political mobilization triggers such undeliverable demands that it

causes the democratic political system to internally implode. Thus, the discourse of democratic

ungovernability has proven a valuable resource in legitimating political repression by casting massmobilization as a threat to the democratic political form. Of course, the question this raises is

whether a system that represses its people because it cannot meet their demands is really worthpreserving. For an overview and critique of the way the problem of "democratic governability"has been addressed by both the left and the right, see Claus Offe, The Separation of Form andContent in Liberal Democracy, in STUDIES IN POLITICAL ECONOMY (1980); for an extensiveanalysis of the reasons why "the liberal democratic state" cannot effectively respond to the

demands of a politically mobilized polity, see Clause Offe & Volker Ronge, Theses on the Theoryof the State, in CLASSES, POWER, AND CONFLICT: CLASSICAL AND CONTEMPORARY DEBATES

(Anthony Giddens & David Held eds., U.Cal.Press 1982) (linking the political limitations of thedemocratic state to the material bases of state power in liberal capitalism).

119. See Rachel F. Moran, What if Latinos Really Mattered in the Public Policy Debate?, 85CAL. L. REV. 1315, 1328-9; 10 LA RAZA 229, 242-43 (1998) (noting limitations of traditionalrace-neutral model of inclusion and advocating alternative model of immigration whichrecognizes that bilingualism and biculturalism are assets rather than threats to national integrity).

120. See Iglesias, Structures of Subordination, supra note 5 (critiquing impact of labor lawdoctrine of "exclusive representation" on self-determination of women of color in Americanworkplaces).

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advanced by the anti-essentialist commitment to anti-subordination poli-tics at the heart of the LatCrit movement.

A. Democracy in Anti-Subordination Perspective:Global Intersections

The meaning of democracy and its role in the struggle for liberationpresent formidable conceptual and political challenges for LatCrit legalscholars and activists. As sociologist Max Castro aptly suggests, thesechallenges are born of the many profound and apparent disjuncturesbetween democratic theory, or rather, the strategic manipulations ofdemocratic rhetoric, on the one hand, and the reality of "democracy" aswe live it, on the other. It is this disjuncture between rhetoric and realitythat makes the struggle over the meaning of democracy a crucial polit-ical space for LatCrit theory to occupy, even as it makes the actualiza-tion of democracy, an aspiration and objective that, approached from ananti-subordination perspective, positions us against the injustices andbeyond the hypocrisies of the "really existing democracies" we currentlyinhabit. 121 By critically examining the disjuncture between democraticrhetoric and the trans/national power structures that coopt and subvertthe self-determination struggles of so many peoples in so many differentcontexts, all five essays in this cluster make significant contributions toarticulating an anti-essentialist perspective on the meaning and practiceof a real and substantive democracy both within and beyond the UnitedStates. 122

THREE STORIES OF "THE CARIBBEAN"

The opening essay by Professor Griffith provides an excellent pointof departure for a LatCrit analysis of democracy. His objective is toshow how "the drug problem" impacts the democratic project in smallcountries throughout the Caribbean. By locating his intervention in "theCaribbean," Professor Griffith situates our analysis of democracy in animaginary region whose multiple dimensions exceed the boundaries of

121. See Max J. Castro, Democracy in Anti-Subordination Perspective: Local/GlobalIntersections: An Introduction, 53 U. MIAMI L. REV. 863 (1999) (using the phrase "reallyexisting democracy" to measure the difference between democratic theory and the democracy inwhich we actually live).

122. Ivelaw Griffith, Drugs and Democracy in the Caribbean, 53 U. MIAMI L. REV. 869(1999); Irwin P. Stotzky, Suppressing the Beast, 53 U. MIAMI L. REV. 883 (1999); MarioMartinez, Property as an Instrument of Power in Nicaragua, 53 U. MIAMI L. REV. 907 (1999);Julie Mertus, Mapping Civil Society Transplants: A Preliminary Comparison of Eastern Europeand Latin America, 53 U. MIAMI L. REV. 921 (1999); Ediberto Romin, Reconstructing Self-Determination: The Role of Critical Theory in Positivist International Law Paradigm, 53 U.MiAmi L. REv. 943 (1999) [hereinafter Romin, Reconstructing Self-Determination].

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any particular term. 123 Like "the drug problem" or "democracy," "theCaribbean" is a signifier with no stable, uncontested referent. It is, atfirst glance, a sea, not a territory - its boundaries marked by water, notby land. It is at second glance a clustered string of geographically iso-lated islands governed by weak and often corrupt little states, politicallyfragmented, but strikingly similar in their economic vulnerability to anddependence on the foreign aid and so-called preferential trade arrange-ments of their former colonizers and current day masters. 124 On a tripletake, the Caribbean might be found beating to the rhythms of mambo,reggae, salsa, merengue and the cha-cha-cha - somewhere in, and yetbeyond, a complicated overlay of transplanted cultures that emergefrom, and have flourished despite, the last 500 years of colonial penetra-tion, intervention and relentless expropriation - a history we wouldhave to tell in Spanish, English, French, Dutch and Portuguese. 25 Pull

back a bit, redraw the map a moment, and the Caribbean rises yet again- this time from a sea of blood, a theater of war zoned for the low-intensity conflicts that submerged it in waves of broken, burnt andbutchered bodies, bleeding to the pulse of state sponsored terror andsuper-power contestations.

Embedded in this controversy over where "the Caribbean" beginsand ends is the dialectic of universal and particular - as well as of themany diverse and conflicting political projects emerging from andtargeted at this region.126 Whether any universal term can unify these

123. See, e.g., ANTONIO BENfTEZ-RoJo, THE REPEATING ISLAND: THE CARIBBEAN AND THE

POSTMODERN PERSPECTIVE 35-36 (Duke U. Press, 2d ed. 1996) (noting the indeterminacy of "the

Caribbean" and observing further that organizing "the Caribbean" construct around the plantationeconomy would redraw its boundaries to include the Brazilian northeast as well as the southernUnited States); see also H. MICHAEL ERISMAN, PURSUING POSTDEPENDENCY POLITICS: SOUTH-

SOUTH RELATIONS IN THE CARIBBEAN at 27, n. 1 (1992) (suggesting that "the Caribbean" be

conceptualized in terms of three concentric circles: its inner circle comprised only of the English-

speaking Caribbean islands, including the Bahamas; the second circle delimited by the Caribbean

archipelago, meaning all the islands plus the mainland extensions of Guyana, Suriname, andFrench Guiana (Cayenne) in South America, along with Belize in Central America; and its outercircle constituted by the Caribbean Basin, which would include all the countries in the first two

categories as well as the littoral states of South America (e.g. Colombia and Venezuela), all ofCentral America, and Mexico). These are, of course, only a few of many ways to imagine themeaning and parameters of "the Caribbean."

124. See MODERN CARIBBEAN POLITICS 4-6 (Anthony Payne & Paul Sutton eds., 1993).125. See generally BENfTEZ-RoJo, supra note 123, at 35 (of course, Benftez-Rojo's

construction of "the Caribbean" as "a way of being in the world" incorporates, but is notexhausted by, the musical rhythms that express it).

126. The Caribbean Basin construct was initially forwarded by the United States as part of itsproject to combat the "leftist threat to the prevailing pro-western ideological order and U.S.

influence in the Caribbean Basin." See ERISMAN, supra note 123, at 132 n.12 (discussing the

purpose and scope of the Reagan Administration's Caribbean Basin Initiative (CBI) which definedthe Caribbean Basin to encompass Central America, Panama, all the independent islands plusGuyana and Belize). But the struggle to delimit a broader map of the Caribbean has also been

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politically fragmented, culturally distinct, and multi-lingual particulari-ties is an open question, but whether we seek "the Caribbean" in theregional similarities that transcend the diversities of language and his-tory or, alternatively, in the struggle to imagine a future beyond thepolitical fragmentation and economic uniformity that keeps these smallcountries dependent and weak, we will certainly not find it in any sub-stantive meaning of the term democracy. On the contrary, as the firstthree essays in this cluster demonstrate, the Caribbean offers a particu-larly compelling starting point for an anti-subordination analysis of"democracy," precisely because democracy has been, for so long and forso many different reasons, as elusive in this region, as the dream of self-determination and the hope of peace. By focusing LatCrit attention on"the Caribbean," Professor Griffith challenges us to configure a broadand multidimensional vision of the democratic project - one that genu-inely engages the anti-subordination struggles of peoples beyond theUnited States, even as it requires LatCrit scholars to think more criticallyabout the U.S. role, both in promoting and obstructing the democraticproject in this hemisphere.

Professor Griffith's story of the Caribbean is of democratic pos-sibilities held hostage to an international drug war. Though U.S. popularrhetoric casts the problem primarily in terms of drug traffickers andpushers, "the drug problem," as Professor Griffith argues, is a fully inte-grated multi-billion dollar transnational industry that - from productionto consumption to the recycling of drug profits - cuts across all regionsof the hemisphere, penetrates all sectors of society and implicates alllevels of government. '27 Assessing the impact of "the drug problem" ondemocracy requires a clear understanding of the divergent problemstriggered by the different stages of this industry. It also presupposessome working definition of what democracy is. Drawing on the classicwork of Joseph Schumpeter, Professor Griffiths defines democracy as apolitical form in which the contestation over state power operatesthrough free and regular elections, where a high degree of participationis admitted and where there exist effective institutions to guaranteerespect for civil and political rights and enhance social justice. Thus,when we speak of democracy "we are talking about contestation for

central to the CARICOM project to promote the kind of regional integration that will enable thesmall countries of the Caribbean to coordinate the diversification of their otherwise competingeconomies and to leverage their political objectives by articulating a unified position. SeeERISMAN, supra, at 111-12 (discussing the Pan-Caribbean perspective underlying Mexican andVenezuelan pledges to provide oil at preferential prices to various Central American andCaribbean states, as well as the vision underlying CARICOM itself).

127. United Nations estimates that the international trade in illegal drugs is worth $400 billion- approximately 8% of world trade - more than the trading in iron, steel or motor vehicles. SeeINTERNATIONAL NARCOTICS CONTROL 2 DEP'T ST. DISPATCH 503 (1991).

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power, participation, and institutions."'' 28

Given this definition of democracy, Professor Griffith develops amultidimensional analysis of the way the international drug industry andthe war it has spawned operate in different ways to undermine the demo-cratic project in the Caribbean. It is a story of corruption engendered bythe circulation of billions in illegal profits that skews the logic of polit-ical contestation and makes state power unaccountable to the democraticelectoral process, as well as a story of private business and financialelites, seduced into money laundering schemes that disrupt ordinarymarket forces, undermine the viability of legitimate economic activitiesand facilitate the consolidation of power and wealth in the hands of druglords and their cronies. It is also a story of law enforcement run amok inits increasingly futile efforts to stamp out the drug trade through repres-sive and anti-democratic assaults on precisely those fundamental civiland political rights without which no democracy can flourish.

Professor Stotzky's essay tells a second story of the Caribbean.Measured against the aspirational imperatives of what he calls "delibera-tive democracy,"' 29 the transition to democracy in Haiti is a story of thedemocratic project held hostage to internal corporative political struc-tures and external financial elites. These internal corporative structuressuppress the emergence of a genuinely deliberative democracy byexcluding "the people" from effective participation in the political pro-cess - in different ways, depending on whether the corporative struc-tures are organized from the top down or the bottom up. When imposedfrom the top down, the state controls, coopts and to a large degree incor-porates the organization of interest groups into state sanctioned monopo-lies, whose agendas are then confined to the politics of the possible asdetermined by the state; when organized from the bottom up, privatepower blocks so dominate the political process that the state is capturedand subordinated to the articulation of their special interests. In eithercase, these corporatist variations leave little room for the expression ofthe popular will of the people.

In Haiti, as elsewhere throughout Latin America and the Caribbean,factions of the military, the Catholic Church, the business class, tradeunions and even the press have all, at different times, cooperated in theinstitutionalization of corporatism by trading support for authoritarianregimes in exchange for special privileges. Because these privileges arethreatened, as much by the rise of a genuine and popular sovereignty asby the extremism of a military dictatorship run amok, the legacy of cor-

128. Griffith, supra note 122, at 873.129. Stotzky, supra note 122, at 890 (explaining the fundamental elements of a deliberative

democracy).

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poratism is a network of organized power blocks hostile to any projectof social, political or economic change that might force them to relin-quish their special privileges or hold them accountable to the peoplewhose families they have murdered or whose patrimony they haveexpropriated and squandered. In such a context, the consolidation of ademocracy requires dismantling these corporative power blocks pre-cisely because a genuinely participatory democracy presupposes andwould undoubtedly trigger vast changes in the socio-economic and polit-ical structures these corporatist groups are most invested in maintaining.

Indeed, one need only consider Professor Stotzky's description ofthe objectives of "the Aristide Plan" to see how constructing the condi-tions for participatory democracy might threaten vested interests. 130

Demilitarization, an independent judiciary, empowered labor unions,grass roots organizations, cooperatives and community groups, progres-sive taxation and human rights prosecutions are all political objectivescertain to put any democratic project on a collision course with pre-cisely those sectors that have most benefitted from the repression anddemobilization of the impoverished majority. Add to these internalobstacles, the externally imposed austerity measures dictated by thestructural adjustment policies through which international financialorganizations like the World Bank and the IMF have projected their neo-liberal agenda onto the international political economy, 131 and the obsta-cles confronting the democratic project in Haiti are nothing less thandaunting.

132

130. Id. at 893-903 (describing and critiquing the Aristide Plan).131. As Professor Stotzky notes, the economic aspects of the Aristide Plan reflect the influence

of the World Bank, the IMF and the Agency for International Development in their boilerplateresponses to the economic crisis in Haiti. Id. at 899. Trade "liberalization," privatization, reducedsocial spending and similar policies are a familiar fare served up for Third World consumption bythese international agents of transnational capitalism. Unfortunately, these policies have, sincethe 1980s, only further impoverished and politically destabilized the countries that adopt them. Itdoesn't take a rocket scientist to see this - thus leading anyone with half an open mind to wonderat the relentless insistence with which these failed policies are repeatedly prescribed. See, e.g.,Elizabeth M. Iglesias, Global Markets, Racial Spaces and the Role of Critical Race Theory in theStruggle for Community Control of Investments: An Institutional Class Analysis, 45 VILL. L. REV.(forthcoming 2000) [hereinafter Iglesias, Global Markets, Racial Spaces] (assessing structuraladjustment policies through a critical analysis of the institutional class structures of theinternational political economy).

132. See James H. Street, The Reality of Power and the Poverty of Economic Doctrine, inLATIN AMERICA'S ECONOMIC DEVELOPMENT: INSTITUTIONALIST AND STRUCTURALIST

PERSPECTIVES 16-32 (James L. Dietz & James H. Street eds., 1987). Street's analysis isparticularly interesting because it shows the symbiotic relationship linking authoritarian politicalregimes and international financial organizations. The call for structural adjustment byinstitutions like the IMF may well serve the political needs of authoritarian elites. When thepeople mobilize against the impact of austerity policies, their mobilization is cast as civil disorder(instigated by subversive communist influences) and used to justify the kinds of repression to

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However, the Haitian story only brings into starker relief the extentto which the democratic project in poor countries throughout LatinAmerica and the Caribbean is caught between the internal rock of corpo-rative political monopolies and the external hard place constituted byinternational financial organizations. Based on past history and theshort-term interest analysis these two sectors tend routinely to exhibit, itis reasonable to predict that the former will continue opposing the pro-gressive tax policies, antitrust regimes and educational programsthrough which Professor Stotzky would reform the neoliberal agenda tohelp the poor majority live a dignified life, the latter will continue tooppose any state intervention in the economy that impinges on foreignexports and direct investments or restricts the expatriation of profits, andneither will be much interested in actually implementing ProfessorStotzky's vision of deliberative democracy. Thus, this second story ofthe Caribbean is not heartening. 33

Mr. Martinez's essay on the rise and fall of the socialist project inNicaragua provides yet a third perspective on the problem of democracyin the Caribbean. Though Nicaragua is geographically located in CentralAmerica, its position in "the Caribbean" is a function of the geopoliticalrhetoric through which the Reagan Administration chose to respond tothe "communist-in-our-own-backyard" problem. 34 The will to view theNicaraguan revolution in terms of Cold War politics, rather than as aresponse to the legacy of terror and expropriation imposed on this smallcountry by a U.S. sponsored dictatorship, is testament to the self-servingmyopia that enabled former President Reagan to tell the Wall StreetJournal in 1980 that "It]he Soviet Union underlies all the unrest that isgoing on. If they weren't engaged in this game of dominos, therewouldn't be any hot spots in the world."'' 31

Contrary to Reagan's suggestion, the Nicaraguan revolution oustedthe Somoza dictatorship in 1979 through "the organized, militant partici-

which these elites are already inclined. Only from this perspective can an authoritariandictatorship be made to appear a solution rather than a problem for the nation.

133. For a more hopeful perspective on the potential role for Bretton Woods institutions tocontribute to the evolution of a more just international political economy, see Carrasco, LatCritTheory and Law and Development, supra note 102; Enrique R. Carrasco & M. Ayhan Kose,Income Distribution and the Bretton Woods Institutions: Promoting an Enabling Environment forSocial Development, 6 TRANSN'L LAW & CONTEMP. PROBS. 1 (1996).

134. See, e.g., HOLLY SKLAR, WASHINGTON'S WAR ON NICARAGUA 57-8 (1988) (noting that"[iln a March 1979 radio broadcast, Reagan seconded Idaho Rep. Steve Symms' concern that 'theCaribbean is rapidly becoming a Communist lake in what should be an American pond."' Reaganadded: "The troubles in Nicaragua bear a Cuban label also. While there are people in thattroubled land who probably have justified grievances against the Somoza regime, there is noquestion but that most of the rebels are Cuban-trained, Cuban-armed, and dedicated to creatinganother Communist country in the hemisphere.").

135. Id.

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pation of Nicaraguan citizens in a 'people's war' against a brutal andruthless tyranny." 136 Mr. Martinez's objective is to explain why the Nic-araguan people initially supported this revolution and how the Sandinis-tas ultimately lost the people's support. 137 He tells this story through acritical analysis of the Somocista property regime that preceded therevolution, as well as the promises made and later betrayed by theSandinista government's failure to legally institutionalize its agrarianreforms in a viable property rights regime. ' 38 This failure to establish anew legal order facilitated the rapid re-concentration of land ownership,through privatization, Sandinista self-dealing, and the rush of formerlandowners to reclaim their expropriated properties after the Sandinistaslost the 1990 election to Violeta Chamorro.

These three stories of "the Caribbean" provide different perspec-tives on the profound challenges confronting the articulation of demo-cratic theory in LatCrit scholarship. They tell of the democratic projectheld hostage to drug traffickers, domestic corporative elites, interna-tional financial organizations and the self-interests of defeated revolu-tionaries. What they do not mention is the role played by U.S.government agents in facilitating the growth of international drug traf-ficking through their collaborations with, protection of and assistance to,known drug traffickers involved in this government's "anti-communist"crusades;' 39 they do not tell of the millions of U.S. tax payer dollarsspent supporting the Duvalier and Somoza dictatorships, as much as thecorporatist elites in post-dictatorship Haiti and Nicaragua;' 4 ° they do

136. GARY RUCHWARGER, PEOPLE IN POWER: FORGING A GRASSROOTS DEMOCRACY IN

NICARAGUA (1987) (noting that the revolution would have been impossible without widespread

support and recounting extent of popular participation in the struggle against Somoza).137. See JEFFREY M. PAIGE, COFFEE AND POWER: REVOLUTION AND THE RISE OF DEMOCRACY

IN CENTRAL AMERICA (1997) (explaining role of agro-export elite in consolidating national unityalliance that enabled overthrow of Somoza, even as it laid seeds for eventual failure of Sandinistareform project).

138. For a variety of perspectives on the Sandinista's land reforms and Nicaraguan property

law, see generally Symposium: The Nicaraguan Property Regime After Sandinista Land Reform,22 CAP. U. L. REV. 833-963 (1993). Compare Jaime Wheelock RomAn, Changes in Agrarian

Property in Nicaragua, 22 CAP. U. L. REV. 853 (1993), with 0. Herodocia Lacayo, The CurrentState of Nicaraguan Property Law, 22 CAP. U. L. REV. 839 (1993).

139. See, e.g., Peter Dale Scott & Jonathan Marshall, COCAINE POLITICS: DRUGS, ARMIES ANDTHE CIA IN CENTRAL AMERICA (1991); ALFRED W. McCoY, THE POLITICS OF HEROIN: CIA

COMPLICITY IN THE GLOBAL DRUG TRADE (1991).

140. See WILLIAM BLUM, KILLING HOPE: U.S. MILITARY AND CIA INTERVENTIONS SINCEWORLD WAR 11 (1995). As Blum recounts, the Duvalier family ruled Haiti from 1957-1986, when

Jean Claude was forced to take flight for the French Riviera on U.S. Air Force jet. Id. at 370. InNicaragua, Anastasio Somoza was installed as director of the Nicaraguan National Guard by

departing U.S. military forces in 1933. The United States had invaded the country to quash therevolutionary uprising, supported by Augusto Cesar Sandino of the Liberal Party and purportedly

financed by the Mexican government. In the years between 1933 and 1979, when Anastasio

Somoza II was finally forced into exile by the Sandinista revolution, the Somoza family had

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not tell of the CIA complicity in, and financial support for, the terrorunleashed by the Haitian military and the Nicaraguan contras in theirefforts to "restore order" and demobilize the masses for a more "govern-able democracy." And yet, these missing elements are crucial to anyanti-essentialist, anti-subordination analysis of the challenges facing thedemocratic project in the Caribbean precisely because, and to theincreasing extent that, the democratic project everywhere is ultimatelyhostage to the policies of the only remaining superpower. The UnitedStates cannot continue "to promote democracy" with one hand, even asit undermines it with the other.

Thus, from an anti-subordination perspective, it makes sense forLatCrit scholars to begin our foray into democratic theory by focusingon the nature and impact of U.S. policies and politics. Beginning thisway locates the problems of democracy at the center, rather than theperipheries, where LatCrit sensibilities should counsel us to tread rathercarefully, lest we are too quickly seduced or reduced to thinking in termsof the readily available blame-the-victim discourses of Third World cor-ruption, authoritarian traditions, and bureaucratic impotence.' Thesefactors are certainly obstacles to the consolidation of democracy in theCaribbean and elsewhere, but they are embedded in an ongoing, centu-ries-long process of interventions, transactions and exchanges betweenThird World states and peoples and a multitude of "foreign interven-ors," whose resources, objectives and ideologies are profoundly impli-cated in the scourge of corruption, dictatorship and underdevelopmentthat has visited these regions. Thus the problems of democracy in theCaribbean or elsewhere cannot be fairly assessed, nor effectivelyresolved without detailed and particularized attention to the anti-demo-cratic impact of U.S. foreign and domestic policies. Indeed, revealingand combating these policies may be the best way for LatCrit scholars toget to "the bottom" of the problems of democracy, both beyond andwithin the United States.'42

RECONTEXTUALIZING THE DEMOCRATIC PROJECT: BEYOND

NEOLIBERAL ASSUMPTIONS AND IMPERIALIST LEGAL STRUCTURES

The last two essays in this cluster by Professors Mertus and Romdn

amassed a fortune in land and businesses then worth $900 million, even as they left behind acountry where two-thirds of the people earned less than $300 a year. Id. at 290.

141. See Ileana M. Porras, A LatCrit Sensibility Approaches the International: Reflections onEnvironmental Rights and Third Generation Solidarity Rights, 28 U. MIAMI INTER-AM. L. REV.413, 419-20 (1996-97) (urging a LatCrit perspective sensitive to both sameness/difference that canmediate the USLat/OtroLat identities).

142. Iglesias, Out of the Shadow, supra note 30, at 379-83 (examining linkage between U.S.anti-terrorism interventions abroad and the devolution of domestic civil rights).

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shift our focus and expand our analysis of the problem democracy. 43

Professor Mertus's essay launches a new trajectory of analysis by offer-ing a preliminary comparison of the transition process in the countries ofEastern Europe and Latin America. In articulating these comparisons,she notes four particularly significant differences worth further reflec-tion: (1) the different attitudes and relationships foreign intervenorshave adopted towards the governing elites of the pre-transition regimesin these two regions; (2) the logically incoherent rhetorical structuresgenerated by the biased and uninformed manner in which foreignobservers tend to assess the meaning of, and allocate blame for, theinternal conflicts and atrocities committed by competing groups in East-ern Europe and Latin America; (3) the different way foreign intervenorsin these two regions have prioritized market and electoral reforms in thetransition from dictatorship; and (4) the degree of internal conflict overthe so-called "stateness problem" within these different regions. Byidentifying these four points of comparison, Professor Mertus provides avaluable analytical framework for a critical comparative analysis of thesubstantive content of "the democratic project" now circling the globe,as well as for assessing the degree to which this neoliberal projectcoheres with the right of self-determination, understood from an anti-essentialist, anti-subordination perspective.

In this vein, Professor Mertus notes that western intervenors havegenerally been more willing to work with the remnants of pre-transitionregimes in Latin America than those in Central and Eastern Europe. Thisshe finds unsurprising, given that the U.S. government actually estab-lished and substantially maintained the military dictatorships in somecountries, like Haiti, Guatemala and Nicaragua, and remained a steadfastally of, and apologist for, the military dictatorships in others, like Argen-tina and Chile - even as these regimes waged dirty wars of inconceiv-able brutality against their own people.'" These regimes, thoughhomicidal and corrupt, were friends and clients of the U.S. nationalsecurity state. The need to legitimate U.S. complicity in their criminalpractices and repressive policies gave birth to the totalitarian/authorita-rian state dichotomy. In Reaganite doublespeak, the kind of humanrights violations and political and economic repression perpetrated bythe military dictatorships in Latin America were of a lesser evil than the

143. Mertus, supra note 122; Roman, Reconstructing Self-Determination, supra note 122.144. See, e.g., SKLAR, supra note 134, at 61 (quoting several of Ronald Reagan's radio

broadcasts in support of the Argentine military dictators and Chile's Pinochet); see generallyBLUM, supra note 140 (recounting U.S. role in installing and/or assisting the military dictatorshipsin Guatemala, Haiti, Ecuador, Brazil, Peru, Dominican Republic, Uruguay, Chile, Bolivia,Nicaragua, Panama and El Salvador as well as its various efforts to topple the democracy in CostaRica).

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kind committed by Eastern block regimes because the latter were "totali-tarian states," while the former were only "authoritarian." Totalitarianstates were always, everywhere and in every way, repressive and evil.Authoritarian dictatorships, by contrast, were not nearly so bad, andsometimes even necessary to ensure the governability of impoverishedand uneducated masses too readily duped by international commu-nists. ' 45 By organizing her comparison of the transition process in LatinAmerica and Eastern Europe around a critical analysis of the relation-ships and attitudes foreign intervenors adopt toward pre-transitionregime elites, Professor Mertus thus reveals how the neoliberal demo-cratic project is still embedded in the doublespeak legacy of cold warpolitics.

Professor Mertus also contrasts the attitudes reflected in the waywestern intervenors have treated the process of political reform in LatinAmerica and Eastern Europe. She notes, for example, that the 1988 Chil-ean plebiscite that ousted the Pinochet dictatorship was observed bythousands of western election observers, while fewer than thirty westernobservers were sent to oversee the 1992 Presidential elections in whichSlobodan Milosevic defeated challenger Milan Panic. 46 This differen-tial treatment raises profound questions about the "really existingagenda" driving the neoliberal project to promote "democratic" transi-tions across the globe. Certainly, Professor Mertus is right to suggestthat western intervention projects of the 1990s in Eastern Europe havetended to prioritize the institutionalization of transnational capitalist eco-nomic relations over the consolidation of democratic accountability andthe self-determination of peoples. However, the apparent emphasis onpolitical reform in Latin America may not reflect different priorities, somuch as the fact that Latin America has already been dancing to thetune of neoliberal market reform projects since the sovereign debt crisisof the early 1980s and its aftermath shifted the balance of powerbetween Latin American debtor states and international financial organi-zations.14 7 Indeed, if anything, the ready willingness with which theU.S. government embraced and supported the Pinochet dictatorship,which even today is lauded as a poster-child for the neoliberal model ofeconomic development in the Third World, 4 8 suggests the degree to

145. See SKLAR, supra note 134, at 60-61 (attributing the totalitarian/authoritarian dichotomyto Jeanne Kirkpatrick, U.S. Ambassador to the United Nations under Reagan and deconstructingits incoherence and hypocrisy).

146. Mertus, supra note 122, at 939-40.147. See, e.g., Philip J. Power, Note, Sovereign Debt: the Rise of the Secondary Market and its

Implications for Future Restructurings, 64 FORDHAM L. REV. 2701 (1996) (providing excellentoverview of Latin American debt crisis and legal mechanisms through which balance of powerbetween debtor countries and international financial organizations has since been reconfigured).

148. Cf Rafael X. Zahralddin-Aravena, Chile and Singapore: The Individual and The

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which U.S. foreign policy in the region has subordinated democraticreform to the imperatives of transnational capitalism.

By focusing LatCrit attention on the relative priority accorded dem-ocratic political and neo-liberal economic reforms in these differentregions, Professor Mertus's comparative analysis maps out a rich fieldof inquiry for examining and assessing, from an anti-subordination per-spective, the increasing convergence between current projects to pro-mote "democratic transitions" through market reform in Eastern Europeand the structural adjustment policies and agendas that have ravagedmuch of Latin America. 14 9 At the same time, by situating her compara-tive analysis in the perennial debate over the relationship between capi-talism and democracy, Professor Mertus challenges LatCrit scholars toreflect more deeply on the way LatCrit anti-essentialist, anti-subordina-tion objectives are impacted by the economic and political outcomes ofthis debate.

In the dominant neoliberal narrative, capitalism and democracy arecast as complementary and mutually reinforcing processes: capitalismpromotes democracy, and democracy promotes capitalism in a happyembrace of economic abundance and political freedom. In some varia-tions of the narrative, this is because competitive markets prevent theconcentration of economic power, thereby preserving the people's free-dom by dispersing and decentralizing private power; 50 in others, ironi-cally, it is because capitalism enables the consolidation of private powerblocks large enough to counter-balance the power of the ever-embryonictotalitarian state. 51 This narrative of the happy relationship between

Collective, A Comparison, 12 EMORY INT'L L. REV. 739 (1998) (noting and criticizingassumptions embedded in representations of Chile as the "model for necessary authoritarianism");Enrique R. Carrasco, Autocratic Transitions to Liberalism: A Comparison of Chilean AndRussian Structural Adjustment, 5 TRANSNAT'L L. & CONTEMP. PROBS. 99 (1995) (Chile cast asmodel for Russian transition).

149. Compare, e.g., Kent Klaudt, Hungary After the Revolution: Privatization, EconomicIdeology and the False Promise of the Free Market, 13 LAW & INEQ. 303 (1995) (documentingthe impact of neoliberal economic ideology on the production of poverty, unemployment, massiveinequality and crime on a scale previously unknown in the centrally planned statist economies ofthe former Soviet Union), with STRUCTURAL ADJUSTMENT AND THE SPREADING CRISIS IN LATIN

AMERICA, (1995) <http://www.igc.apc.org/dgap/crisis.html> (visited August 27, 1999) (providingoverview of impact of neoliberal structural adjustment policies on the political instability andeconomic underdevelopment in Latin America).

150. See, e.g., Walter Adams & James W. Brock, The Sherman Act and the Economic PowerProblem, THE ANTITRUST BULLETIN, Spring 1990. Conversely, neoliberals argue that democracypromotes capitalism because private companies must be free of state interventions andbureaucratization in order to innovate. See Bob Jessop, Capitalism and Democracy: The BestPossible Political Shell? in POWER AND THE STATE (Gary Littlejohn et al. eds., 1978); F.A.HAYEK, THE ROAD TO SERFDOM (1946).

151. See, e.g., MILTON FRIEDMAN, CAPITALISM AND FREEDOM 9 (1962):

Viewed as a means to the end of political freedom, economic arrangements are

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capitalism and democracy exists in direct competition with accounts oftheir mutual incompatibility. In these alternative accounts, each domainthreatens always and everywhere to overrun and subsume the other:Capitalism threatens democratic freedom, and democratic politicsthreaten capitalist freedom. The threat to democratic freedom arisesfrom the growth of economically powerful private firms, whose signifi-cance to the national economy renders the state, and the political pos-sibilities it can pursue, hostage to the policy preferences of thesecorporate giants.152 Conversely, since democracy creates the spacethrough which demands for redistributive interventions are expressedand imposed upon private economic elites, the institutionalization ofdemocratic accountability to the people always threatens to contract therealm of capitalist freedom. 53

Given the degree to which racial, ethnic and other forms of subordi-nation are organized around both the political marginalization and theeconomic dispossession of peoples of color, Professor Mertus's essaysuggests the profound challenges and wide range of questions awaitingLatCrit attention in the field of democratic theory. Though a LatCritperspective might certainly shed valuable light on the rhetorical instabil-ity created by these abstract theoretical debates about the "real" relation-ship between capitalism and democracy, our legal training makes usparticularly well situated to pursue a project more immediately relevantto the objectives of promoting anti-essentialist, anti-subordination socialtransformation through law. This project would focus critical analysis onthe way the relationship between the state and the market is articulatedin the interpretation of legal doctrine - particularly in litigated casesand legislative debates where the struggle for racial justice has con-fronted and sought to render the monopolization of both economic andpolitical power democratically accountable.' 54 The outcome of such

important because of their effect on the concentration or dispersion of power. Thekind of economic organization that provides economic freedom directly, namely,competitive capitalism, also promotes political freedom because it separateseconomic power from political power and in this way enables the one to offset theother.

Indeed, in some versions of this second account, even concentrated markets promote freedombecause only large economically powerful private corporations can counterbalance the power of acentralized, bureaucratic, interventionist state. See Jessop, supra note 150.

152. See Adams & Brock, supra note 150, at 44 (discussing the capacity of giant firms (andlabor unions) to threaten economic catastrophe if their demands are not met); see also RobertPitofsky, The Political Content of Antitrust, 127 U. PA. L. REV. 1051, 1057 (1979) (excessiveconcentration of economic power will breed anti-democratic political pressures).

153. See Offe & Ronge, supra note 118; Offe, supra note 118.154. See, e.g., Elizabeth M. Iglesias, "Confronting Race" by Mapping the Construction of

Institutional Power: LatCrit Reflections on Law and the Anti-Political Economy, 33 MICH. J. L.REF.; 5 MICH. J. RACE & L. (forthcoming 2000) [hereinafter Iglesias, The Anti-Political Economy]

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cases and legislative debates raise fundamental questions about the rela-tionship between racial inequality and the institutional structures andprocesses of the neoliberal political economy.

At stake, ultimately, is the question whether racial, ethnic and otherforms of subordination can be eliminated within the institutionalarrangements of a neoliberal political economy, structured around thestrategic separation of economics and politics.'55 The answer LatCritscholars give to this question may determine whether the imperatives ofracial equality are to be satisfied by a project that achieves for minoritycommunities the reproduction and transposition of the same class hierar-chies pervasive in white society or whether the struggle for racial equal-ity will eschew institutional arrangements that perpetuate the economicdispossession and political marginalization of the world's vast majoritiesand engage, instead, in the search for alternative arrangements that canactualize a more real and substantive democracy throughout both thepolitical and economic institutions of the inter/national politicaleconomy.

Finally, by focusing her comparative analysis of the transitionprocesses in Latin America and Eastern Europe on "the problem ofstateness," Professor Mertus raises one of the most vexing problemsconfronting any project aimed at articulating a substantive vision of self-determination - that is, in Professor Roman's formulation, the problemof defining "the self' whose right of self-determination is to be protectedand enabled through the construction of democratic regimes. 56 WhileLatin American states have enjoyed substantial international support inresisting the legal recognition of self-determination movements operat-ing in this hemisphere,"5 ' Professor Mertus notes that "the state" in East-ern Europe has been systematically weakened by recent developmentsboth at the international and subnational levels. At the internationallevel, the driving engine of the neoliberal project has been the perceivedimperative of weakening the totalitarian state. Indeed, the weak state,

(tracing interpretative manipulation of the state/market dichotomy through cases adjudicatingconstitutionality of minority business set-asides and political boycotts seeking racial justice in themarket); see also Iglesias, Global Markets, Racial Spaces, supra note 131 (illustrating howeconomic/political dichotomy is invoked to obstruct democratization of economic institutions).

155. See Iglesias, The Anti-Political Economy, supra note 154 (for deconstructive analysesrevealing the strategically manipulated indeterminancy of the purported separation of economicsand politics).

156. See Roman, Reconstructing Self-Determination, supra note 122, at 947.157. L.C. Green, Low Intensity Conflict and the Law, 3 ILSA J. INT'L & COMP. L. 493, 503-04

(1997) (noting that none of the guerrilla movements in Latin America have ever been recognizedby the Organization of American States on the theory that they are not national liberationmovements, but only "revolutionary groups seeking to replace the local government rather than tooverthrow domination, alien occupation or a racist regime").

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with limited authority to intervene in the economy and power frag-mented across a system of checks and balances is at the heart of theliberal democratic vision of freedom. 158 However, in weakening thestate to free the market, foreign intervenors have perhaps unwittinglycontributed to the reactivation of ethnonationalist divisions at subna-tional levels throughout the region. These ethnonationalist group identi-ties each claim the right of self-determination, undermining the power ofthe state and thereby triggering the so-called "stateness problem," pre-cisely because the right of self-determination is legally effectuatedthrough the international community's recognition that a particulargroup has the right to pursue self-government through the organizationof their own state.

The final essay by Professor Romdn takes up the international rightof self-determination as if by design. While the preceding essays reveal,in different ways, the disjuncture between democratic rhetoric and theanti-democratic realities produced by the history and ongoing fallout ofcold war politics, Professor Romdn's essay links this disjuncture to thestructure of international law and, more specifically, to the strategicmanipulations through which the doctrine of the right of self-determina-tion of peoples has been interpreted in international law. According toProfessor Romdn, despite the supposed underpinning of the right to self-determination in the universal norms of human freedom and the equalright of all peoples to control their own destinies, the right of self-deter-mination has been hostage to three stages in the organization of the cur-rent world order. These three stages are marked by the era ofgeopolitical militarism; the era of racial tutelage, in which the self-deter-mination for non-self-governing and trust territories was to proceed,under the Trusteeship System, "at a pace dictated by the colonial admin-istrators"; and the era of global disinterest marked by the tolerance offirst world powers towards the alien domination of some third worldpeoples by other third world peoples.

In each era, the right to self-determination has been hostage to thepolitical calculations of the most powerful states in the internationalcommunity as well as to the indeterminacy surrounding the scope andlimits of the right of self-determination. In its most restrictive formula-tion, the right is not recognized outside the decolonization context; in itsmost expansive formulation, the right of secession might be asserted byany distinct minority group. Thus, in Professor Romdn's view, articulat-ing a substantive content for the right of self-determination of peoplesrequires the formulation of objective criteria by which to determinewhether a group constitutes "a self'or "a people."

158. See Offe & Ronge, supra note 118; Offe, supra note 118.

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Professor Romdn's search for the objective criteria that make agroup a people, like Professor Mertus's comparison of the statenessproblem in Latin America and Eastern Europe, raise manifold questionsfor LatCrit theory. The Eastern European experience under the ethnona-tionalist governance structures established by the Dayton Peace Accordscounsels grave caution in conflating the right of self-determination withthe project of having "a state of one's own." '159 As with any complex andmultidimensional problem, the substantive and methodological commit-ments already articulated in prior LatCrit scholarship provide a usefulpoint of departure. At a minimum, this record counsels that the problemof defining the meaning of, and designing the institutional structures togive substantive content to, the right of self-determination should beapproached from an anti-essentialist, anti-subordination perspective.From this perspective, the problem of self-determination is the same vis-a-vis any collectivity that purports to represent the interests of individu-als, who are always and everywhere constituted as multidimensionalbeings marked by distinctions of class, gender, race, ethnicity, language,sexual orientation, and national origin. That problem, as Professor Mer-tus notes, is the problem of developing institutional arrangements thatcan sustain the commitment to social justice, both between and withinstates, by recognizing the importance of group membership and identi-ties, on the one hand, and the value of personal autonomy and individualrights, on the other. 160

From this perspective, the anti-subordination agenda implicated inthe struggle for self-determination reaches far beyond the parametersdelimited by the problems of constituting a state. Indeed, I have arguedbefore, and still believe, that the demise of the interstate system of sov-ereign nations is a potentially progressive development for the struggleagainst subordination.16" ' Not only has the structure of the interstate sys-tem figured prominently in enabling both the processes of uneven devel-opment and the practice of war, 62 but as the essays by Professor Mertusand Romdn illustrate, the very project of delimiting the parameters of astate must inevitably essentialize the identities and suppress the multi-

159. See Shelley Inglis, Re/Constructing Right(s): The Dayton Peace Agreement,International Civil Society Development, and Gender in Postwar Bosnia-Herzegovina, 30 COLUM.HUM. RTS. L. REV. 65, 79-80 (1998) (describing the ethnonationalistic structure of theconstitutional regime established by the Dayton Peace Accords, which divide all components ofthe central government into thirds, ensuring both equal representation of Croats, Serbs, andBosniaks and the paralysis of a central government mired in ethnic politics).

160. Mertus, supra note 122, at 942.

161. See, e.g., Elizabeth M. Iglesias, Foreword: International Law, Human Rights and LatCrit Theory, 28 INTER-AM. L. REV. 206-07 (1996-97) [hereinafter Iglesias, Foreword].

162. See id. (citing references).

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plicity of interests that simultaneously converge and diverge in the con-figuration of any group.

Rather than investing further in a bankrupt system of nation-states,LatCrit theory might chart a new agenda to imagine and articulate thekinds of institutional arrangements and rights regimes that can promotethe right of self-determination, both at the international and sub-nationallevels where the neoliberal project is, even now, reconfiguring and con-solidating new regimes of freedom and compulsion. At an internationallevel, this agenda might take up the pending project of promoting thefull recognition of individuals as subjects of international law, for exam-ple, through the incorporation of international human rights into theinstitutional structures, substantive norms, and decisional procedurescurrently regulated by international economic law.' 6 3 At a subnationallevel, this agenda might begin by rejecting the neoliberal paradigm thatconfines democracy to the political realm, and pursue the institutional-ization of democratic governance structures throughout the inter/nationaleconomy as well. 164 Both trajectories provide a meaningful way out of"the stateness problem," even as they expand the parameters and mean-ing of democracy in ways that more readily cohere with the anti-essen-tialist, anti-subordination commitments that are the heart of the LatCritmovement.

B. Language, Technology and Communicative Power: FromLanguage Rights to the Struggle for Control of the Means

of Communication

Language rights have been a central issue in LatCrit theory since itsinception.165 LatCrit III was, however, the first time that LatCrit confer-ence organizers sought intentionally and self-consciously to link the

163. See, e.g., Iglesias, International Economic Law, supra note 15; G. Richard Shell, TradeLegalism and International Relations Theory: An Analysis of the World Trade Organization, 44DUKE L.J. 829 (1995) (advocating trade stakeholder's model as vehicle to incorporate socialwelfare and human rights into WTO); Patricia Stirling, The Use of Trade Sanctions as anEnforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World TradeOrganization, 11 AM. U. J. INT'L. L. & POL'Y 1 (1996).

164. See, e.g., Iglesias, Global Markets, Racial Spaces, supra note 131 (critical analysis oflegal reforms needed to promote community participation in decisionmaking processes throughwhich investment capital is allocated in the inter/national political economy).

165. See, e.g., Steven W. Bender, Direct Democracy and Distrust: The Relationship BetweenLanguage, Law, Rhetoric and the Language Vigilantism Experience, 2. HARV. LATINO L. REv.145 (1997); Christopher David Ruiz Cameron, How the Garc(a Cousins Lost Their Accents:Understanding the Language of Title VII Decisions Approving English-Only Rules as the Productof Racial Dualism, Latino Invisibility and Legal Indeterminacy, 85 CAL. L. REV. 1347; 10 LARAZA 261 (1998) (critical analysis of Title VII's anti-discrimination framework given its failure toprohibit the imposition of arbitrary and intrusive restrictions on the use of languages other thanEnglish in the workplace).

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struggle against English-Only to a broader struggle for communicativepower. This imagined project was forwarded to expand LatCrit theory'ssubstantive agenda by encouraging a collaborative effort to develop acritical analysis of the way differential access to the means of communi-cation is legally constructed across different sociolegal contexts and theway the resulting structures of communicative power/lessness should beaddressed in LatCrit theory.' 66 In this expanded critical project, thestruggle over language rights reflects only one instance in a more gen-eral struggle against relations of domination organized by and effectu-ated through the legal production of differential access to the means ofcommunication. This is because the compelling personal and collectiveinterests at stake in the struggle against the suppression of non-Englishlanguages are equally implicated in the such matters as the regulation ofpolitical speech 167 and the ownership and control of new technologies ofcommunication.

168

Indeed, in each of these contexts, the matter at stake is the power tocommunicate - to express oneself - meaningfully and effectively.Increasingly, the power to communicate is determined by access to, con-trol of, or authority over the means of communication. 69 Indeed, the"means of communication" have become as central to the structure ofpower/lessness in our postmodern, hyperlinked, globalized, mass mediasociety as the "means of production" were central to the class strugglesof modernizing industrialism. Individuals and communities shut out ofthe information age and out-spent in a political system that casts theexpenditure of money as protected political speech - such that effectivespeech comes to depend increasingly on the ability to spend money -are just as certainly robbed of the instruments of self-determination and

166. To this end, LatCrit III featured a plenary panel entitled Anti-Subordination and the LegalStruggle over Control of the "Means of Communication:" Technology, Language andCommunicative Power. A description of its substantive objectives can be found at <http://nersp.nerdc.ufl.edu/-malavet/latcrit/archives/lciii.htm>.

167. See, e.g., Bank of Boston v. Bellotti, 435 U.S. 765 (1977) (striking down restrictions oncorporate political expenditures on theory that such expenditures constitute speech protected by VAmendment); Buckley v. Valeo, 424 U.S. 1 (1976) (expenditures of money constitute protectedspeech).

168. See, e.g., Madeleine Mercedes Plasencia, The Politics of Race on the Electronic Highway:An Analysis of the Video Dialtone Redlining Cases, and the Nynex Consent Decree in Roxbury, 15ToURo L. REV. 513 (1999) [hereinafter Plasencia, Video Dialtone Redlining] (describing howdiscriminatory redlining practices of telecommunications companies threaten to shut minorityneighborhoods out of communications revolution).

169. See Keith Aoki, Introduction: Language is a Virus, 53 U. MIAMI L. REV. 961 (1999)(Long Live Keith Aoki!); see also MARK D. ALLEYNE, INTERNATIONAL POWER ANDINTERNATIONAL COMMUNICATION 2-5 (1995) (explaining difference between communication,

understood as systems and infrastructures for dissemination of information, (e.g. telephones,satellites, news agencies, and languages) and information, understood as 'raw matter' or data,whose content is circulated through the means of communication).

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the power of self-expression, as workers separated from and denied con-trol over the means of production. By thematizing the linkages betweenlanguage, meaning-making power and the struggle for self-determina-tion, the essays in this cluster go a long way toward delimiting a broadfield ripe for anti-subordination theory and practice. 170

LANGUAGE RIGHTS IN ECONOMIC ANALYSIS AND MORAL THEORY

The opening essay by Professors Bill Bratton and Drucilla Cornellis based on a collaborative project in which they join the anti-nativiststruggle against initiatives to suppress the use of languages other thanEnglish. 17' Their objective is to make an economic and moral case fortreating language based discrimination as an equal rights violation. Inter-estingly, they develop their arguments using two very different forms ofdiscourse. Professor Bratton uses law and economic analysis to chal-lenge key assumptions about the way English-Only laws and employ-ment regulations affect the incentive structures through which individuallanguage acquisition and group assimilation are mediated in this coun-try. Professor Cornell articulates a moral theory of rights that castsrespect for language rights as fundamental to "the basic moral right ofpersonality," thereby moving the articulation of equality rights beyondthe truncated formalism of an anti-discrimination framework to groundit, instead, on the concept of self-determination.

More specifically, Professor Bratton's objective is to use economicanalysis to destabilize the nativist political project by challenging theassumption that English-only laws and workplace regulations will pro-mote assimilation to the English-speaking norm that, for the nativist,defines "the essence" of American identity. He acknowledges that Eng-lish-only laws and policies are, at least superficially, supported by aplausible economic argument that language regulation maximizes socialutilities by increasing communicative efficiency and reducing barriers tosocial interaction otherwise associated with the Tower of Babel

170. William Bratton, The Law and Economics of English Only, 53 U. MIAMI L. REV. 973(1999); Drucilla Cornell, The Imaginary of English Only, 53 U. MIAMI L. REV. 977 (1999); Wells,supra note 16; Madeleine Plasencia, "Suppressing the Mother Tongue": Anti-Subordination andthe Legal Struggle Over Control of the Means of Communication, 53 U. MIAMI L. REV. 989(1999) [hereinafter Plasencia, Suppressing the Mother Tongue]; Yvonne Tamayo, LiteralSilencing/Silenciando la Lengua, 53 U. MIAMI L. REV. 995 (1999); Sharon K. Hom, LexiconDreams and Chinese Rock and Roll: Thoughts on Culture, Language, and Translation asStrategies of Resistance and Reconstruction, 53 U. MIAMI L. REV. 1003 (1999); Hayakawa Torok,supra note 9.

171. See Drucilla Cornell & William W. Bratton, Deadweight Costs and Intrinsic Wrongs ofNativism: Economics, Freedom and Legal Suppression of Spanish, 84 CORNELL L. REV. 595(1999).

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cacophony of multiple languages.' 72 To be sure, Professor Bratton alsochallenges the initial assumption that "sameness" lowers costs.' 7 3 How-ever, his major contribution is in showing why English-only laws areunlikely to achieve their purported "efficiency" objectives. He does thisthrough a detailed analysis of the incentive structures Spanish speakersconfront in acquiring English language proficiency.

In a nut shell, Professor Bratton's economic analysis suggests thatif nativists are really serious about promoting Latina/o assimilation intoAmerican society, they should focus on eliminating discriminationagainst Latinas/os, rather than suppressing Spanish. This is because thesuppression of Spanish is neither necessary nor sufficient to achieve itspurported objective of fostering Latina/o assimilation. Spanish suppres-sion is unnecessary because Latinas/os have strong economic incentivesto learn English.' 74 Those incentives only increase when non-discrimi-natory practices enable English language acquisition to produce upwardsocial mobility. Conversely, Spanish suppression is insufficient to pro-mote assimilation precisely in those instances in which the realityLatinas/os confront in American society is discriminatory and exclusion-ary. From this perspective, enclave settlement, employment and com-mercial practices are simply a rational response to the discriminationexperienced when Latinas/os venture outside the Spanish-speakingenclave. '75

Professor Bratton's law and economics analysis of English-only isparticularly interesting and valuable because it creates the point ofdeparture for a more general and far-reaching attack on the oft-repeatedassertions made by law and economics practitioners that civil rights andanti-discrimination laws constitute unwarranted "special interest" inter-ventions in the otherwise efficient private ordering of American soci-ety.' 76 It doesn't take a rocket scientist to see the ready uses of thisdiscourse for the nativist project. Bilingual education programs andother public policies aimed at mitigating the exclusionary impact of lan-

172. Bratton, supra note 170.173. According to Bratton, "at some point, [this assumption] has to be qualified by the counter-

assumption that diversity leads to creative interaction." Id. at 974.174. Professor Tamayo further buttresses this argument by noting the unmet high demand for

English classes among immigrant populations. Tamayo, supra note 170, at 998-99 (5,000immigrants turned away from ESL classes in Washington D.C.; 40,000 wait-listed in LosAngeles).

175. See, e.g., Alex Stepick et al., Brothers in the Wood, in NEWCOMERS IN THE WORKPLACE

145, 148 (Louise Lamphere et al. eds., 1994) (recounting how Cuban construction workersexcluded from Anglo dominated unions in Miami responded by creating their own non-unionfirms and ultimately taking over the industry: "When the unions finally recognized that excludingCubans was a mistake, it was too late.").

176. Bratton, supra note 170, at 974.

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guage difference on non-English speakers are either manifestations ofthe concrete steps needed to give meaning and effect to the vision ofinclusion underlying the promise of equal protection and non-discrimi-nation - or they are manifestations of the capture of public policy byspecial interests. Framed this way, it is clear that the initial debate isover the meaning of bilingual programs, on the one hand, and English-only, on the other.

In this debate, law and economics discourse gives the nativist sub-stantial meaning-making power because the language of costs and effi-ciency is so readily wrapped in the mantle of purported objectivity andvalue-neutrality: English-only laws are not discriminatory because theyare efficient, or so goes the argument. Against this backdrop, ProfessorBratton's contribution maps the economic arguments that can effectivelyturn the tables to reveal English-only laws as special interest legislativeinterventions. Since- in the absence of discrimination - private order-ing already ensures that non-English speakers will have strong incen-tives to acquire English language proficiency, there is no regulatoryneed to create such incentives through English-only laws. There beingno regulatory need, English-only laws constitute the use of state powerto reaffirm the exclusionary political project embedded in the presump-tion that Anglo culture defines what it means to be "an American," and,more specifically, to promote higher levels of English language acquisi-tion and usage than the market would produce - in the absence ofdiscrimination.

By laying out these arguments, Professor Bratton arms the anti-nativist struggle with a valuable meaning-making resource: the languageof law and economics, but his analysis also demonstrates the indetermi-nacy and normative vacuity of law and economics analysis. Ultimately,cost-benefit analysis cannot tell us how public policy should respond tothe skewed incentive structures currently obstructing Latinalo assimila-tion. This is, at least initially, because discrimination is not "absent"from the incentive structures mediating language acquisition. Given thepresence of discrimination, the public policy issue cost-benefit analysiscannot answer is precisely the question whether state interventionsshould attempt to counteract these skewed incentive structures by pro-moting language assimilation through anti-discrimination enforcementand bilingual initiatives or through the imposition of policies like Eng-lish-only. Indeed, cost-benefit analysis not only cannot tell us how topromote language assimilation in a discriminatory social context, it alsocannot justify why assimilation to an English language norm should bethe objective, given that efficiency is only one of many compelling val-ues at stake in the formulation of public policy.

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Professor Bratton is not unaware of the normative problems inher-ent in any discourse that measures language rights through a cost-benefitanalysis. Thus, a fair assessment of his efforts requires that we read it asit was intended to be read - as part of a larger collaborative project inwhich Professor Cornell's role is to articulate the normative frameworkwhich gives moral content to the task of articulating public policies thatotherwise are rendered profoundly indeterminate by Professor Bratton'screative subversion of the nativist economic arguments. Professor Cor-nell proceeds in this way to ground the case against English-only in thebasic moral right of personality of non-English speaking and bilingualAmericans.

As I read Professor Cornell, this basic moral right of personality isnot just a right to be treated as an end-in-oneself rather than a disposablemeans in some project to maximize social utilities, nor does it simplyrefer to the right to be treated as a free and equal subject whose rights ofself-determination and self-expression are non-negotiable imperatives. Itis all this and more, for in Professor Cornell's formulation, the moralright of personality is a right to be recognized - in one's very differ-ence - as an equal and legitimate perspective. This formulation, cor-rectly understood, constitutes a profound and compelling call for afundamental gestalt shift in our current interpretations of the meaning ofequal protection because it clearly marks the difference between "equaltreatment" and "treatment as an equal." Treatment as an equal does notalways mean equal treatment, precisely because the expectationsimposed and benefits conferred by equal treatment may have a substan-tially different impact on one's human dignity and self-determinationdepending on the circumstances of one's difference. Conversely, itwould be a mistake, in my view, to confuse the call for an equality normbased on the treatment of others as equals with earlier calls for an equal-ity of results rather than of treatment.17 7 The objective in treating othersas equals is not to make everybody equal by eliminating differences, butrather to recognize that everybody is already equal in their very differ-ences and to design our social and legal institutions in ways that respectthat reality. 78

177. See, e.g., Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. CMu. L. REV. 235(1971) (discussing difference between equal treatment and equal results in context of fairemployment laws).

178. For further reflections on this important theme, see, for example, SOREN KIERKEGAARD,

WORKS OF LOVE 72 (Howard & Edna Hong trans., Harper Torchbook 1964). Kierkegaard putsthe thought like this:

One's neighbor is one's equal. One's neighbor is not the beloved, for whom youhave passionate preference, nor your friend, for whom you have passionatepreference ... Your neighbor is every man, for on the basis of distinctions he is notyour neighbor, nor on the basis of likeness to you as being different from other men.

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The implications of Professor Cornell's way of understanding themeaning of equality are profound and far-reaching. It entirely changesthe public policy issue, for the issue is not whether public policy effectu-ates equal treatment among the similarly situated, but whether it treatsthose who are differentially situated as equally worthy of the respect anddeference to which equals are entitled. Applying this framework to theanalysis of English-only laws, it is immediately evident that the impactof English-only on the self-determination and self-expression of non-English speakers and bilingual or multilingual Americans cannot be rec-onciled with the imperative to treat all others as equals - each havingthe right of self-determination as defined and effectuated from their par-ticular and altogether different perspectives. Thus, in this context, it isclear that the legitimacy of English-only laws depends on the projectionof an equality norm that presupposes sameness as the predicate for equaltreatment. Professor Cornell's great contribution is to show theprofound inadequacy of this approach and to offer a more meaningfulnormative framework through which to resolve the indeterminaciesotherwise generated by the instrumental analysis of public policy.

Though Professor Wells' reading of Professor Cornell's analysis isdifferent from my own, 17 9 her essay does offer a clear and compellingaccount of the reasons why Professor Cornell's call for an equality normbased on the treatment of others as equals would constitute a majorevolution in the moral fabric of human society. In this vein, ProfessorWells' argument begins by noting the advantages a Kantian perspectiveoffers over the utilitarian perspective underlying law and economics dis-course: "while the economist thinks of human beings as aggregations ofpreferences backed by dollars, the Kantian conceives of them as non-

He is your neighbor on the basis of equality with you before God; but this equalityabsolutely every man has, and he has it absolutely.

Id. (emphasis added). Like many male philosophers, Kierkegaard's otherwise expansive visionwas truncated by the gender myopia of his times. That, however, would be another article.

179. Professor Wells' critique notes the limitations of grounding the equality norm in aKantian framework. Wells, supra note 16, at 987. A close reading of Professor Cornell'sargument reveals, however, that her analysis draws as much on Franz Fanon's insistence on theright to be recognized "as a legitimate point of view" as it does on Kant. See Cornell, supra note170 (reflecting on meaning of Fanon's observations that evil of racism is in being "deniedexistence as a legitimate point of view."). The claim embedded in the demand the I be recognizedas a "legitimate point of view" is precisely the claim that my difference be respected and mydifferent perspective be recognized as an equally valid point of reference in defining the commongood. See, e.g., Iglesias, Structures of Subordination, supra note 5, at 468, 473-78 (challenging"the complete and total absence of women of color as a legitimate agent or remedial referencepoint and the structure of power that is thereby established and maintained," and developingaccount of "the inter-subjectivity of equals" as "a moral imperative and institutional blue print").Thus Professors Wells and Cornell are not as far apart as an initial reading of Professor Wells'critique might suggest.

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negotiable subjects of respect and value."' 8° Indeed, as Professor Brat-ton's essay illustrates, in a world ordered by law and economics, a per-son's interest in speaking a particular language will, like any otherinterest, be measured against the efficiency costs of protecting that inter-est so that, if the cost is too high, the individual's right will be sacrificedfor the "greater good" of the whole. By contrast, in a Kantian moraluniverse, a fundamental right of personhood cannot be sacrificed at anycost.

The non-negotiable status given to rights of personhood makesKantian moral discourse a more appropriate language than law and eco-nomics for articulating the meaning of equal protection. Nevertheless,in Professor Wells' view, the Kantian framework is ultimately inade-quate because it grounds respect for others on the notion that humanbeings share an essential sameness - that the imperative of doing ontoothers as you would have done onto you is based on the recognition of acommon humanity and a reverence for the things that make all humanbeings the same - rather than a recognition of the value of the differ-ences between us. In Professor Wells' words, "[w]hat we can't get fromKant is the notion that what is sacred in you is fundamentally differentfrom what is sacred in me; that someone who differs is -for that veryreason - especially worthy of respect."''

This is a brilliant insight, clearly and simply articulated in a waythat makes evident the profound challenge awaiting LatCrit theory andpractice. By linking respect for difference to the experience of one'sown particularity, contingency and finitude, Professor Wells articulates aprofoundly revolutionary perspective on the reasons why respect for dif-ference is, always and in every respect, a moral, existential and episte-mological imperative. The suppression of difference and enforcedassimilation are not only attacks on the dignity of another, but acts ofself-destruction that confine us even further in the limitations of our owncontingency, for it is precisely through the other that our finite ways ofbeing and knowing are expanded and enriched.' 82 The implications areprofound. Otherness and difference are a gift, an avenue of insightbeyond our own particularities, a window on the world we might beholdif ever we could see beyond our own contingency and live beyond ourfinitude - a glimpse of God. An equality norm based on the imperativeof treating others as equals operationalizes this understanding in ways

180. Wells, supra note 16, at 987.181. Id. (emphasis added).182. See, e.g., Iglesias, Structures of Subordination, supra note 5, at 478 ("Through the

suppression of the other, we are all denied the opportunity to transcend the limitations of ourcontingent perspectives. We are denied, in short, the opportunity for authentic self-determinationgrounded on the objectivity of a collective truth.").

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that the norm of equal treatment neither does nor can, for it is only bytreating others as equals that we activate an equality norm that enablesus to focus, as Professor Wells suggests, on "the gift of otherness, theopportunities of multi-lingualism and the possibility that through differ-ence we can find wholeness."' 83

Professor Wells makes another point worth further reflection. Thepower of self-expression is crucial to self-determination. Both presup-pose access to language, not just any language, but a language in whichthe world, as one sees it, and one's own self-understandings can bemeaningfully formulated and expressed. The language of law and eco-nomics has not been popular among critical legal scholars. Part of thereason is, as Professor Wells indicates, its failure to incorporate pre-cisely those values, interests and cultural processes that resist translationinto a cost-benefit analysis. The not-so implicit suggestion is that LatCrittheory should avoid speaking the language of law and economics.184

Some might dismiss this suggestion out of hand: not only are the costsand benefits of any proposal substantively relevant to its proper assess-ment, but law and economics is the language of choice among policy-making elites and, increasingly, evident in the interpretative practices ofmany judges. 85

Speaking the language of power is, from this perspective, impera-tive precisely because, and so long as, power is power. Indeed, there isno question that Professor Bratton's efforts to recast the debate overEnglish-only laws in terms that destablize the economic justificationsroutinely invoked to support the nativist agenda constitute a major con-tribution to the anti-nativist struggle precisely because law and econom-ics analysis is the language of power. More importantly, however, theindeterminacy revealed by Professor Bratton's creative subversion of thelaw and economics analysis underlying English-only suggests that lawand economics discourse may have become such a ready conduit forregressive and elitist political agendas precisely because critical legalscholars have rarely contested its articulation on its own terms. 86 Learn-ing and using the language of power may thus be the best way to combatthe legal production of subordination. Though not all LatCrit scholarsneed use law and economics analysis, certainly this suggests there is

183. Wells, supra note 16, at 988 (emphasis added).184. Id. (suggesting that we avoid getting caught up in "the cost of multilingualism").185. See, e.g., Carrasco, LatCrit Theory and Law and Development, supra note 102, at 331

(challenging LatCrit scholars to become fluent in the language of law and economics analysis, inpart because that is the language to which policymakers respond).

186. See also Frank J. Garcia, NAFTA and the Creation of the FTAA: A Critique of PiecemealAccession, 35 VA. J. INT'L L. 539 (1995) (demonstrating that law and economics analysis can bemade to further anti-subordination objectives).

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room for, and value in, counting it among the repertoire of critical meth-odologies through which we expand the scope of our anti-subordinationagenda and enhance the depth of our analysis.1 87

Nevertheless, Professor Wells' cautionary words give me reason topause- not because I doubt the possibility or apparent usefulness ofstrategically deploying a language whose basic assumptions one doesnot embrace. Instead, my concern stems from the way increased fluencyin the language of law and economics tends to reaffirm and consolidateits dominant position within the legal academy and profession. In Lan-guage & Symbolic Power, Pierre Bourdieu writes incisively of the waylinguistic hierarchies are created and the way these hierarchies operate inthe organization of social power. 188 Two points are particularly perti-nent here. First, he argues that linguistic hierarchies are producedthrough "the dialectical relation between the school system and thelabour market - or more precisely between the unification of the edu-cational (and linguistic) market, . . .and the unification of the labourmarket."' 89 He further argues that "recognition of the legitimacy of theofficial language... [is] impalpably inculcated, through a long and slowprocess of acquisition, by the sanctions of the linguistic market, andwhich are therefore adjusted, without any cynical calculation or con-sciously experienced constraint, to the chances of material and symbolicprofit which the laws of price formation characteristic of a given marketobjectively offer to the holders of a given linguistic capital."' 190

There is no question that a cost/benefit analysis would suggest, atleast at first glance, that acquiring fluency in the language of law andeconomics makes for a better career investment than acquiring fluencyin the methodologies, references and critical frameworks of outsiderjurisprudence. Those who master the dominant language reap therewards of assimilation. In this case, those rewards are directly linked tothe labor market. Law and economics aficionados get hired by elite lawschools, appointed to the federal bench, recruited for high-level policy-making positions and published in prestigious law journals at higherrates than exponents of any of the major strains of critical legal dis-course.' 9' By contrast, legal scholars working to articulate critical per-

187. See, e.g., Iglesias, Foreword, supra note 161, at 177, 182, 187, 191 (noting the criticalmethodologies embraced or advocated by LatCrit scholars).

188. PIERRE BOURDIEU, LANGUAGE & SYMBOLIC POWER (Raymond & Adamson trans., 1991).

189. Id. at 49.190. Id. at 51.191. Owen M. Fiss, The Death of the Law, 72 CORN. L. REV. 1, 2 (1986) (contrasting critical

legal studies and law and economics in terms of their representation within faculties at eliteschools and on federal bench); Ian Ayres, Never Confuse Efficiency with a Liver Complaint, 1997Wis. L. REV. 503, 504-05 (noting that economic analysis has been dominant social science in

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spectives and promote legal transformation in and through thediscourses of Critical Legal Studies, Critical Race Theory, Critical RaceFeminism, Queer Theory, LatCrit Theory and even of Law and Societyare channeled into the "interesting visitor" circuit, cast as "too political"for judicial appointment and "too abstract and theoretical" for the nitty-gritty of policy-making. For young scholars, the choice of an academicdiscourse can make the difference between being cast as "an insider" or"an outsider," and that difference can cost you tenure.

The stakes are high. Understanding their full scope requires under-standing not only that legal education is training for hierarchy,192 butalso the extent to which those hierarchies can, consciously and uncon-sciously, infuse everything we do and aspire to achieve. It can infuse ourassessments as to who should be our audience - whether we write toimpress the powerful and well-positioned or to engage, enlighten andempower each other and thus to consolidate our otherwise dispersed anddiverse community. It can also infuse our assessments as to where andhow to publish our works - whether we seek to acquire prestigethrough fancy placements in top-ten law journals or, rather, seek insteadto confer prestige by submitting our best works to the "secondary" jour-nals run by minority law students eager to work with, and learn from, us.

Certainly, these matters would not concern me so much if Ibelieved that the language of law and economics was infinitely indeter-minate such that it really could, with sufficient effort, be made to formu-late, communicate and construct the world as I, and other others, see itand, perhaps more importantly, as we aspire to imagine and transform it.It cannot - for the reasons Professors Bratton, Cornell and Wells haveeach alluded to in different ways. At the same time, critical legal dis-courses, that might, won't ever develop their full potential unless wecollectively invest our human capital and professional careers in theirfurther development and dissemination. The stakes are high indeed. Thepay offs are higher, for rather than speaking the language of power - totinker at the margins and to shift ever so slightly the points of pervasivedisequilibrium - the articulation and effectuation of an anti-essentialist,anti-subordination vision and politics requires that we empower otherlanguages by speaking them as much, as well and as often as we can.There is definitely a place for law and economics analysis in LatCrittheory, but, in my view, it is, and should remain, at the margins of our

analyzing legal issues and that economists and J.D.s with Ph.Ds in economics are more likely tobe hired to teach in law schools than J.D.s with Ph.Ds in other social sciences).

192. See DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY

(1983).

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efforts to understand and reconfigure the structures and ideologies ofsubordination.

Professor Plasencia's comment introduces yet another dimension ofthe anti-subordination agenda awaiting future LatCrit analysis at theintersection of language rights, meaning-making power and the strugglefor self-determination. Focusing on the awesome technological break-throughs that continue to revolutionize the structure and content ofglobal communications, Professor Plasencia notes the frustrations non-English speakers often encounter in attempting to use the new means ofcommunication that increasingly will mark the difference between"information haves" and "have nots" in the new world informationorder:

In composing e-mail in Spanish, for example, one cannot readily findthe symbols necessary to communicate fully in Spanish. Of the vari-ous templates made available for computerized language production,Spanish accents and other symbols often do not match the font of theoriginal text in which the document was composed. The e-mail Ihave drafted in Spanish often arrives to its addressee with circleswhere I had placed accents. Therefore, I look like some sort of cha-otic writer. "'

While the personal embarrassment experienced when one's com-municative efforts are distorted into gibberish may seem, to some, aminor frustration, the issues it raises are profound. The Internet and theWorld Wide Web have been heralded as engines of a new world infor-mation order and as the most recent advances that increasingly are mak-ing the dream of universal communications a reality. They may be allthis, but they also constitute a major challenge for the critical task ofgiving substantive meaning and anti-subordination content to the inter-national and historical commitment to cultural pluralism and universalservice.I94 From fiber optics to cyberspace networks, new communica-tions technologies are speeding the flows of information. Being pluggedinto these flows means having the power of virtually instantaneous com-munications: the power to send and receive messages, to and from multi-ple audiences, instantaneously, to transfer documents, to reallocatecapital, to purchase goods, to download and print out the world of infor-mation, it previously took hours or days or weeks to compile. Not being

193. Plasencia, Suppressing the Mother Tongue, supra note 170, at 994.194. See, e.g., Arturo Gandara, Equity in an Era of Markets: The Case of Universal Service,

33 WAKE FOREST L. REV. 107 (1998) (critiquing rupture of telecommunications social compactbased on universal service by Federal Communications Commission's Universal Service Order);Margaret Chon, Radical Plural Democracy and the Internet, 33 CAL.W. L. REv. 143 (1997)(mediating cultural pluralism and liberal normativity in cyberspace).

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"plugged-in" can mean knowing too little too late. For some this is apersonal choice. Others have no choice.

These developments suggest the pressing need for LatCrit theory toexamine the ongoing communications revolution and its impact on thereproduction of Latina/o subordination, both domestically and interna-tionally. This is because taking self-determination seriously means tak-ing seriously the information inequalities that link the issue ofmeaningful access - to the historical development and future evolutionof the legal regimes that regulate international and domestic communi-cations technologies, information infrastructures, services and networks.The compelling social and racial justice issues implicated by the recentprivatization and increasing monopolization of the broadcast spectrumby large multinational corporations,' 95 by the redlining practices of for-profit telecommunications companies, 196 by the struggle for minorityaccess to media ownership, 97 as well as the struggles of Third Worldstates for access to the geo-stationary orbit for satellite communications- all these suggest the broad field of critical analysis awaiting LatCritattention in ensuring that Latinas/os and other peoples of color are notshut out of the information age.

In pursuing this line of inquiry, LatCrit scholars would, as always,do well to draw on the writings and analyses of other Third World peo-ples and peoples of color, for example, by excavating the economic andpolitical claims underlying earlier proposals to create a New WorldInformation and Communication Order (NWICO) and the variousreforms NWICO articulated for the information and communicationsregimes governed by the World Intellectual Property Organization(WIPO), the International Telecommunications Union (ITU) and theUniversal Postal Union (UPU) 198 as well as by subjecting to critical anti-

195. See HERBERT I. SCHILLER, INFORMATION INEQUALITY: THE DEEPENING SOCIAL CRISIS IN

AMERICA (1996).196. See Plasencia, Video Dialtone Redlining, supra note 168.197. SCHILLER, supra note 195, at 84 (noting that FCC permitted large corporate investors to

acquire 75% of the equity and 49.9% of voting stock of minority businesses receiving set-asides insell-off of publicly owned broadcast spectrum to private interests). Cf Adarand Constructors v.Pena, 515 U.S. 200 (1995) (overruling Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) ongrounds that enhancing broadcasting diversity through minority ownership set-asides is notcompelling government interest); see generally Marcelino Ford-Livene, The Digital Dilemma:Ten Challenges Facing Minority-Owned New Media Ventures, 51 FED. COMM. L. J. 577 (1999).

198. See, e.g., ALLEYNE, supra note 169, at 118-53 (explaining how each of these regimesadvantaged first world interests at expense of third world interests and the reform proposalspropounded by third world representatives); see also Ingrid Volkmer, Universalism andParticularism: The Problem of Cultural Sovereignty and Global Information Flows, in BORDERSIN CYBERSPACE (Brian Kahin & Charles Nesson eds., 1997) (re-mapping the center/periphery ofthe global informatics world around the "spillover environments" marked by in/access to majorsatellite systems and telecommunications infrastructure and noting that "Africa has "12% of theworld's people, but just 2% of the world's main telephone lines").

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subordination analysis the more recent trend to shift decision-makingauthority formerly delegated to these international organizations tovenues like the World Trade Organization (WTO).199 From another per-spective, this inquiry might entail mapping and deconstructing homolo-gies in the way the discourse of "politicization" has been used todelegitimate Third World peoples as a legitimate perspective on the wayinternational communications should be structured for the common goodand the way the ideology of "free market competition" has been used tolegitimate legal reforms and public policies that channel the achieve-ment of universal service through the market imperatives of profit max-imization, rather than the promotion of democratic governance and equalaccess norms. These brief observations demonstrate some of the widerange of issues and methods of analysis that will become increasinglyrelevant to the LatCrit project and our efforts to understand the relation-ship between the struggle for self-determination, for meaning-makingpower and for access to, and control over, the new means ofcommunication.

TOWARD AN ETHIC AND POLITICS OF MUTUAL RECOGNITION:

COUNTERACTING EXCLUSIONARY PRACTICES, ELITIST PRETENSIONS

AND INTELLECTUAL APPROPRIATIONS

The last three essays in this cluster by Professors Tamayo, Homand Hayakawa Torok focus LatCrit attention on the complex and variedproblems confronted by any project aimed at communicating across cul-tural differences and translating the untranslatable. Professor Tamayo'sessay takes up these issues through a critical analysis of the argumentsproffered by English-only advocates in Yniguez v. Arizonans for OfficialEnglish."°° In that case, English-only advocates argued that laws man-dating use of English as a common language were appropriate and nec-essary means of combating the social disunity, political instability andpublic distrust and suspicion purportedly triggered when the English-speaking majority hears public business conducted in a language they donot understand. In addition to recounting the reasoning that ultimatelypersuaded the Ninth Circuit Court of Appeals to strike the Arizona Lan-

199. See, e.g., Taunya L. McKarty, Liberalized Telecommunications Trade in the WTO:Implications for Universal Service Policy, 51 FED. COMM. L.J. 1 (1998); see also Keith Aoki,(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, 48STAN. L. REV. 1293, 1338-52 (1996) (intellectual property rights under TRIPS/GATT regime).

200. 69 F.3d 920 (9th Cir. 1995) (declaring unconstitutional English-only provision in State

constitution), vacated as moot and remanded to district court for dismissal, Arizonans for OfficialEnglish v. Arizona, 117 S. Ct. 1055 (1997); see also Plasencia, Suppressing the Mother Tongue,supra note 170 (providing further critical analysis of arguments advanced in support of ArizonaLanguage Initiative invalidated in this case).

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guage Initiative as an invalid regulation violating the rights of Arizonapublic employees to speak and of non-English speaking Arizonans tohear public information spoken in Spanish, Professor Tamayo makes apoint of linking her analysis to a narrative account of her own difficul-ties in attempting to translate meanings across Spanish and English. It isprecisely these difficulties, and the "untranslatability" of certain mean-ings, that make the suppression of languages other than English a directassault on the personal identity and self-expression of those persons,whose means of effective communication are thereby contracted solelyin order to maintain English as the privileged and dominant means ofcommunication in this country. Rather than fostering genuine integra-tion based on mutual respect for, and accommodation of, these differentmeans of self-expression, English-only laws seek to coerce a false senseof unity through the enforced silence of non-English speakers in, andtheir ensuing exclusion from, the public realm of American social life.

Professor Hom's essay also takes up the problem of "untrans-latability." However, she substantially expands our analysis by provid-ing concrete examples of the kinds of words and meanings that do noteasily translate across language differences and the political implicationsof these barriers for cross-cultural understanding and exchange. Drawingon her experiences co-editing the first and only English-Chinese Lexiconon Women and Law,2" Professor Hom describes the process of identi-fying and collecting a list of English terms that have been central to thedevelopment of feminist legal theory and political activism, but that Chi-nese women report to be particularly confusing, unclear or incoherentwhen presented in Chinese translation. Terms such as AffirmativeAction, Empowerment, Gender and Sex defy ready translation into Chi-nese because these terms refer to particular social, political and histori-cal contexts and/or because they are embedded in particular theoreticalframeworks. Translating these terms is not impossible, but it doesrequire an in-depth explanation of the broader context that gives eachterm its particular meanings within feminist legal discourse and politics.

Through her concrete examples and detailed explanations of theinterpretative processes through which she and her collaborators soughtto identify appropriate Chinese terms that could effectively be made tosignify the new and foreign meanings embedded in English feminist ter-minology, Professor Hom provides an extremely valuable and fascinat-ing avenue of insight into the way language is both the constructedrepository and the unfinished instrument of the social and political trans-formations we have achieved in the past and might seek to imagine in

201. See SHARON K. HOM AND XIN CHUNYING, ENGLISH-CHINESE LEXICON OF WOMEN AND

LAW (Yinghan Funnu Yu Falu Cehuishiyi) (1995).

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the future. This is because the terms, whose meanings she struggled toconvey through this English-Chinese Lexicon, are linguistic artifacts ofparticular historical struggles and conceptual breakthroughs. Thesestruggles and breakthroughs generated a need for new ways of signify-ing new meanings which did not previously, and would not now, existbut for the intellectual and political efforts through which women'sstruggles for equality and dignity gave birth to the newly shared con-sciousness referenced in and by the new feminist terminology whichdeveloped to express it. Our present ability to convey these meaningsquickly and easily by uttering a simple word like "gender" or "empow-erment" is a tremendous political resource, whose historical contingencyand inestimable value are often invisible - except in precisely thoseinstances where the effort to produce a common political consciousness"goes international" or cross-cultural. Only then can we see the real andmaterial costs of not having the words to reference the ideas we seek toexpress or the consciousness we seek to construct.202

Professor Hom's essay would have been a major contribution to thefuture evolution of LatCrit theory if it had simply stopped here. It goeseven further. Like her brilliant performance at LATCRIT III, ProfessorHorn's essay is an imaginative and multiply nuanced interrogation of thenormative and political implications embedded in the practice of culturaland intellectual appropriation.20 3 In particular, her essay links an engag-ing narrative of a playful mother-son exchange, in which her sonasserted that her use of his life stories might be a copyright infringe-ment, to her own thoughts about the way she should interpret andrespond to the massive underground xeroxing and distribution insideChina of her copyrighted Lexicon. Linking these two instances of"copyright infringement" enables her, on a more serious note, to reflectcritically on the possessive individualism that underlies western copy-right and intellectual property regimes. To this end the linkage is entirelysuccessful. The conjured image of a son proposing to charge his mother"by the story" provides a compelling backdrop against which to criti-cally question the appropriateness of seeking to enforce copyrightrestrictions against a continent of Chinese women. In'both instances, theassertion of copyrights ruptures bonds of solidarity and interconnection

202. The implications for LatCrit theory are profound - not only because so much of LatCrittheory's anti-essentialist agenda is focused on exploring and activating Latina/o transnationalidentities and international solidarity, but also because, and precisely to the extent that, LatCrittheory seeks to articulate a politics of anti-essentialist, anti-subordination intergroup justice andinterconnectivity that defies expression in readily processed sound-bites. See, e.g., infra notes213-15 and accompanying text.

203. Professor Hom's presentation was, without question, one of the many highlights of theLATCRrr UI program. As my own son would say, her multimedia presentation rocked.

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because it operates, in effect, to commodify the interpersonal exper-iences and shared political objectives that produced, and are otherwiseembedded in, the copyrighted "product." Only someone completelyensconced in the (lack of) values of possessive individualism would seekto commodify these artifacts of a shared reality and a common cause.

Not surprisingly, Professor Hom continues to use her son's life sto-ries even as she expresses hope that her copyrights in the Lexicon willcontinue to be violated by women in China. However, her reflectionsbeckon further inquiry because they raise the question whether there areany instances in which LatCrit scholars should resist the appropriation ofour intellectual work and the erasure of our individual authorship. Forexample, many scholars of color, in private discussions and public fora,have criticized the network of self-referential cross-citations throughwhich majority scholars exclude minority authors, even as they appro-priate and seek to preserve their dominant positions, in producing "thenormal science" of mainstream legal scholarship, by ignoring any criti-cal analysis they cannot rebut."0 4 Beyond these instances of exclusion,scholars of color have also noted instances in which their intellectualwork has been cannibalized in subsequent works by majority scholars,whose analysis uncannily tracks the same sources and articulates thesame, or related, observations and conclusions with no citation, or amere see generally, to the original work from which they have lifted themajor theoretical insights or chain of analysis they present as their own.

From any objective standard of scholarship, the failure to referenceand engage major critical works directly pertinent to the issues underdiscussion is at best poor scholarship and often reflects the intellectualdishonesty of either an ideologue or, more often, an imposter. However,when confronted with evidence that their work has been appropriatedwithout appropriate citation or acknowledgment, many scholars of colorflounder in the very sorts of internal conflict Professor Hom's essay con-jures. To assert one's authorship and demand individual recognition forideas whose purpose is to transform the world seems self-promoting andcounter to the political aspirations underpinning the production and dis-semination of critical scholarship. Put differently, too often minorityscholars find themselves caught between the sense of being individuallywronged by the unacknowledged appropriation of our intellectual labor

204. Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil RightsLiterature, 132 U. PA. L. REv. 561 (1984). For an account describing the practice of "normalscience" and the politics through which its practitioners seek to suppress paradigm shifts, seeTHOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2 nd ed.1970). See also Juan F.Perea, The Black/White Paradigm of Race: The "Normal Science" of American Racial Thought,85 CAL. L. REV. 1213 (1997), 10 LA RAZA L.J. 127 (1998) (applying Kuhn's analysis to legaldoctrine and theory).

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and a deeper sense that our individual authorship is simply not the issuethat matters.

It is precisely because LatCrit theory seeks to transform the produc-tion of legal scholarship from an experience of individual isolation into apractice of collective engagement and empowerment that LatCrit schol-ars should theorize the difference between the kinds of intellectualappropriations we should permit or encourage and the kinds we shouldchallenge and resist. We should also explore different strategies foridentifying instances of, and collectively implementing appropriateresponses to, the erasure of minority authorship. Certainly, one readyresponse is to self-consciously practice a politics of mutual recognitionby reading and citing the works of other LatCrit scholars as often, and inas many venues, as possible. It is politically significant when we choose,for example, to cite the works of dead European philosophers rather thanliving LatCrit colleagues. This is because who we cite (or fail to cite)reflects and defines the participants we acknowledge and engage as ourintellectual and political community.

Beyond this practice of mutual recognition, LatCrit scholars mightexplore other strategies through which collective action might effec-tively be marshaled to combat the erasure of minority authors. Forexample, LatCrit scholars might consider the possibility of "outing"works by majority legal scholars that inappropriately ignore or appropri-ate theoretical insights and analysis previously forwarded by minorityscholars. Collectively compiling and publishing a list of such works,with appropriate commentary, might go a long way toward revealing theextent of erasure and appropriation individual minority scholars toooften suffer in silence. On the other hand, this particular strategy mightbe more work than it's worth. Perhaps a different strategy is in order.Rather than seeking recognition from the legal academy's "normalscientists" and gatekeepers of the status quo, LatCrit scholars mightwork, collectively, proactively and self-consciously, to foreswear theelitist pretensions too often evident in the politics of citation and commitourselves, instead, to a politics of mutual recognition through which thepersistent dissemination and consistent cross-referencing of LatCritscholarship may, thereby, actually trigger the paradigm shifts alreadyembedded in the critical insights of LatCrit theory and discourse.

The final essay by John Hayakawa Torok closes this cluster withreflections on language acquisition and loss drawn from his experiencesas a participant observer at the LATCRIT III conference. Like the otheressays in this cluster, his comments focus on the role of language in theconstruction and expression of personal and political identities. Reflect-ing on the many distinct and diverse perspectives articulated during the

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conference, he raises fundamental questions about the possibility ofinter-group translation and cross-cultural recognition. Through personalnarrative, he highlights the processes of individual language acquisitionand challenges the wisdom of enforcing language uniformity. Read intandem with the other essays in this cluster, his reflections reassert thecentrality of language in the de/construction of communities, the affir-mation of identity, the organization of power and the demarcation ofinsider/outsider relations.

C. Inter/National Labor Rights: Class Structures, Identity Politicsand Latinalo Workers in the Global Economy

The essays by Professors Romero, Corrada and Cameron constitutethe third and final cluster in Part 11.205 Like the essays in the first twoclusters, these essays explore the relationship between regimes of il/legality, identity politics and the struggle for individual and collectiveself-determination. While the first two clusters examine these relation-ships through a critical analysis of the disjunctures between democratictheory and the realities of anti-democratic practices and institutions, onthe one hand, and the ongoing struggle over language rights and commu-nicative power, on the other, these last three essays focus LatCrit atten-tion on the struggle for worker rights. In doing so, they explicitly centerthe issue of class in the articulation of LatCrit legal theory.

Attention to class issues has been acknowledged as a pending, butas yet underdeveloped, trajectory in the further evolution of LatCrit the-ory and the consolidation of LatCrit social justice agendas.2 °6 Class-based analysis is a particularly pressing matter for LatCrit attention pre-cisely because so much ink has been spilt and so much intergroup soli-darity has been squandered in abstract theoretical debates about therelative priority of class and "identity," particularly racial, ethnic andgender identity, in the subordination of peoples of color, as well as by

205. Elvia R. Arriola, Introduction: The Value of Our Work, 53 U. MIAMI L. REV. 1037(1999) (introducing the essays); Mary Romero, Immigration, the Servant Problem, and the Legacyof the Domestic Labor Debate: "Where Can You Find Good Help These Days!," 53 U. MIAMI L.REV. 1045 (1999); Roberto L. Corrada, Familiar Connections: A Personal Re/Viewing of Latinola Identity, Gender, and Class Issues in the Context of the Labor Dispute Between Sprint and LaConexion Familiar, 53 U. MIAMI L. REV. 1065 (1999); Christopher David Ruiz Cameron, TheLabyrinth of Solidarity: Why the Future of the American Labor Movement Depends on LatinoWorkers, 53 U. MIAMI L. REV. 1089 (1999).

206. See Iglesias & Valdes, supra note 2, at 574-82 (mapping historical and regionaldifferences in configuration of class relations and production of poverty among different Latina/ocommunities and calling for particularized analysis as distinct from generalized and abstract

debates); Iglesias, Out of the Shadow, supra note 30, at 368-72, 370 (calling for LatCrit theory tomove beyond abstract race/class debates by centering political economy and production of class

hierarchies in analysis of white supremacy).

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the counter-positioning of race and class in more concrete debates overthe future of public policies like affirmative action, minority businessset-asides, public assistance eligibility rules, trade liberalization andimmigration policies.

On the one hand, calls to ground the articulation of social justicereforms in a class-based analysis have too often ignored the very realimpact of racism and sexism as strategic instruments in the material dis-possession and anti-competitive exclusion of women and minorities.From this perspective, class-based legal reforms and empowermentstrategies cannot eliminate the impact of racism or sexism preciselybecause they do not really engage the reality of racism and sexism.20 7

Conversely, however, calls to emphasize the centrality of racial subordi-nation, rather than class or gender-based subordination, have too oftenignored the material realities of intra-racial stratifications and hierar-chies that are organized around relations of gender and class privilegewithin minority communities, while calls to focus on gender-based sub-ordination have often ignored the problems of class and racial hierar-chies among women."'

Against this backdrop, the three essays by Professors Romero, Cor-rada and Cameron illustrate the analytical power gained by articulatingan anti-essentialist, anti-subordination analysis of the complexities ofclass subordination within and between Latina/o communities. This isbecause all three essays locate the economic dispossession of Latina/oworkers at the intersection of national and international legal regimesand the ongoing transformation and restructuring of an increasinglyinternationalized global economy. They reveal, in different ways andfrom different perspectives, the failure of domestic and internationallabor law regimes to establish a fair and just framework for preventingthe exploitation of Latina/o labor and the expropriation of the real valueit creates. They also challenge us to further examine and more clearlyarticulate the relationship between the class biases reflected in these

207. See, e.g., Iglesias, Structures of Subordination, supra note 5, 488-92 (projection ofuniversal class-based identity and solidarity ignores fact that racial and gender stratificationswithin working class make race and gender-based solidarity and collective action equallyimperative); see also Iglesias, The Anti-Political Economy, supra note 154 (deconstructingsuggestion that racial structure of "market" for government contracts can be transformed throughcolor-blind reforms to assist small businesses in the inter-capitalist competition between smalland large firms).

208. See, e.g., Iglesias, Structures of Subordination, supra note 5, 488-97, 493 (exploring howclass-based, gender-based and race-based essentialism of different liberation movements hascaused each to ignore the perspectives and claims of justice advocated by the others, analyzingnegative consequences for intersectional identities of women of color and suggesting reformsneeded to construct anti-essentialist institutional arrangements that enable self-determinationthrough more democratic self-representational governance structures and decisional procedures).

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legal regimes, their politics of (non)enforcement and the reproduction ofracial and gender subordination both within and beyond the UnitedStates.

THE DYNAMICS OF DISPOSSESSION: LABOR WRONGS, THE FANTASIES

OF MARKET IDEOLOGY AND THE REALITIES OF

ECONOMIC POWER/LESSNESS

Professor Romero's essay opens the cluster with a narrative of herpersonal experiences at the home of a colleague who employed a Latinadomestic servant. Professor Romero contextualizes this story of classprivilege and gendered exploitation by linking it to a critical analysis ofthe unfair labor standards regulating domestic labor in the United States,as well as to a sophisticated critique of the theoretical assumptions thatundermined, and ultimately betrayed, the anti-subordination potentialotherwise embedded in early feminist efforts to recast the unpaid domes-tic labor performed by women in the home as a form of class exploita-tion. Professor Romero's analysis provides a particularly valuable pointof departure for articulating an anti-essentialist class analysis in LatCrittheory because it shows how the material dispossession of Latinadomestic servants is effected through a complex interaction of race,class, gender and immigrant status-based subordination - even as itreveals the methodological limitations of neoliberal micro-economicanalysis.

In a nutshell, Professor Romero criticizes the fact that feministefforts to cast women as an economic class and to theorize the economicvalue of women's unpaid labor structured the so-called "domestic labordebate" in ways that completely ignored the experiences of the womenof color, who oftentimes must bear the burden of domestic work bothwithin their own homes and in the homes of other (upper-class) womenwho hire them as domestic servants. Though early feminist theorysought to establish the value of women's unpaid domestic labor and tothereby reveal the full extent of unjust enrichment conferred on menthrough the cultural circulation and performance of patriarchal normscasting housework as "women's work," these early feminist effortsignored the realities of "the market" for domestic service. In this reality,immigrant women of color often work long hours, at less than minimumwage, with no employment benefits, and under personally intrusive andotherwise exploitative working conditions. Instead of confronting thisreality, feminists turned to the fantasy world of micro-economic analy-sis. They sought to establish the monetary value of the many serviceswomen render in their own homes by calculating the costs of securingthese same services through the voluntary arms length transactions of a

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market exchange. This analysis revealed that the vast majority of house-hold units would be completely priced out of the market for domesticservices because few could afford the accumulated costs of acquiring theservices of a cook, a house cleaner, a teacher, a nurse, a chauffer, ababysitter (and one might now add - of a surrogate mother) in themarket. In this way, the economic viability of every patriarchal familywas clearly linked to the exploitation and uncompensated expropriationof women's labor.

This domestic labor debate eventually erupted into public con-sciousness, as the "Nannygate" controversy, when President Clinton'swoman nominee for Attorney General was discovered to have illegallyemployed undocumented workers as domestic servants in her home.The Nannygate affair, as recounted by Professor Romero, brings intosharp relief the contradictions in the way (some) white feminists haveengaged the problem of domestic labor. On the one hand, the earlierfeminist efforts to establish the "market value" of domestic labor castwomen's services as ultimately priceless. On the other hand, the domi-nant feminist response - to the public controversy over Nannygate -was to minimize the criminal aspects of employing undocumenteddomestic workers by insisting that current immigration restrictions wereout of step with "women's needs" for stable and affordable domestichelp - meaning low wage workers owed no expensive benefitsobligations.

But, as Professor Romero's analysis suggests, if the reproductivelabor involved in maintaining a home is "priceless" when performed bywhite women in their own homes, certainly it should also be priceless(or at least remunerative) when performed by women of color in thehomes of other women. The fact that it is not shows that wages fordomestic service are determined not by "the market value," let alone theuse value, of the services rendered, but rather by the asymmetricalpower relations that are constructed through the compulsion of eco-nomic necessity, the vulnerability of being "illegal" or undocumented,and the cultural and racial prejudices that devalue the labor value pro-duced by immigrant women of color. The fact that dominant feministdiscourse has yet to acknowledge and address its internal contradictionsreveals the essentialist assumptions through which feminist theorydelimits the category of "women's interests" to privilege the particularinterests of upper-class white women, while neglecting the "women'sinterests" of lower class immigrant women of color. By revealing thiscontradiction, Professor Romero's analysis enables us to see the fullextent of unjust enrichment conferred on upper-class household unitsthrough the cultural circulation and performance of elitist classist and

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racist norms that legitimate the uncompensated material expropriation ofthe labor value of immigrant women of color.

CLASS CRIMES AND THE POLITICS OF NON-ENFORCEMENT: LAW'S

COMPLICITY IN THE UNJUST (AND ILLEGAL) EXPROPRIATION OF

LATINAIO LABOR VALUE

Against the backdrop of Professor Romero's critical analysis of theasymmetrical power relations that "distort" the supposedly voluntaryexchange transactions upon which micro-economic analysis builds itshouse of cards, the essays by Professors Corrada and Cameron furtherdevelop and expand the theoretical parameters and thematic concerns ofan anti-essentialist class analysis in LatCrit theory. They also offer addi-tional insights into the role of law in facilitating the material expropria-tion of Latina/o labor value as well as the poverty, marginality andeconomic dispossession this expropriation visits upon Latina/o familiesand communities.

Professor Corrada offers these insights by focusing LatCrit atten-tion on the labor dispute between a Mexican labor union and Sprint Cor-poration after Sprint purchased La Connexion Familiar (LCF). Thisdispute is particularly noteworthy because it became the subject of thefirst complaint ever filed by a Mexican labor union against the UnitedStates under the NAFTA Labor Side Accord. LCF was a small Hispanictelephone company based in San Rafael, California. Its businessinvolved marketing long distance telephone services to recent immi-grants who speak mainly Spanish and who frequently make long dis-tance calls to friends and family in Mexico. After the purchase, Sprintdiscovered that a large majority of LCF's employees were undocu-mented workers and sued to recind the purchase. Though Sprint eventu-ally went through which the deal, they paid substantially less money forthe company and canceled the employment contracts in which they hadagreed to retain the former Hispanic owners of LCF.

According to Professor Corrada, there was no further informationabout the fate of the undocumented workers whose employment at thecompany triggered Sprint's efforts to recind the purchase. In particular,there was no information as to whether these workers were kept on orreplaced by "legal" Spanish-speaking employees, though as ProfessorCorrada notes, this information would have been relevant to determiningwhether Sprint's efforts to recind were pretextual. Alas, the fact thatSprint's scruples about buying a company staffed by undocumentedworkers might have been pretextual and strategic was not directly rele-vant "within the four corners" of the labor dispute at issue in theNAFTA complaint. Nevertheless, what is evident is that Sprint initially

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decided to purchase LCF based on projections that increasing immigra-tion by Spanish speaking persons into the United States would makeLCF's niche market a growing profit center. Thus, Sprint's apparentscruples about employing undocumented workers did not affect its readi-ness to make a calculated business decision based on the expected prof-its to be earned from the consumption practices of illegal immigrants.

This point is key. Read in tandem with Professor Romero's analysisof the under-enforcement that makes the (unfair) employment ofundocumented workers a low-risk white collar crime, it shows that thepolitics of immigration enforcement is not so much about stopping ille-gal immigration, but rather about who will be allowed to profit from theincreased migration flows that are all but inevitable given the push-pullfactors of an increasingly interconnected and global economy.2"9 Thefact that U.S. companies can with impunity profit from, and proactivelyplan their business projections around, the labor influxes and consump-tion patterns of illegal immigrants is a field of sociolegal analysis cryingout for further exploration by LatCrit scholars interested in theorizingthe political economy of Latina/o subordination.

But Professor Corrada's story goes on. After Sprint purchased LCF,the company started to perform below projected profit levels. At aboutthe same time, the Communications Workers of America began anorganizing campaign at the company in response to worker complaintsof unfair treatment and failure to pay promised sales commissions. Anadministrative law judge issued a cease and desist order, finding thatSprint managers had violated Section 8(a)(1) of the NLRA by interferingwith union organizing activity through threats of plant closure andemployee interrogations. Just before the union election was to be held,Sprint closed LCF and terminated the employees. Part of LCF's cus-tomer base was transferred to Dallas, Texas, where Sprint hired addi-tional Spanish speaking employees to deal with the influx of newbusiness. There is no information as to whether these additional workerswere documented or unionized. After an administrative law judge and afederal district court judge both ruled that Sprint's course of conduct inclosing LCF did not violate federal labor laws, a Mexican labor unionfiled a submission under the NAFTA labor side accord alleging thatUnited States was not enforcing its own labor laws as required by itscommitments under the accord.

It was at this point that Professor Corrada was asked to testify as an

209. See, e.g., Alvarez, supra note 29, at 310-11 (noting that investment patterns promoted byNAFTA actually encourage Mexican immigration to the United States and arguing therefore that

"the United States is morally obligated to do more than simply build a 'fortress America' inreaction" to push-pull factors it has itself created).

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expert witness for Sprint at a U.S. NAO hearing on the Mexican submis-sion. He agreed and ultimately testified that U.S. labor laws had beenproperly enforced. Much of his essay is a searching, honest, self-revealing and self-critical effort to explore the broader implications ofhis decision to testify on Sprint's behalf. His essay is structured as adialogue between himself and an inquiring Latina law student, perplexedby the seeming contradictions between his classroom discourse, hisLatino identity and his decision to testify in support of a major U.S.company charged with the flagrant violation of Latina/o workers rights.It is, in fact, a moving demonstration of the way the intersectionalities ofLatinalo identity can trigger the sorts of existential crises that expandpolitical identity and enable new ways of seeing and being.

The more immediate point stems, however, from the fact that Pro-fessor Corrada's legal conclusion, that the United States government hadproperly enforced its labor laws in the Sprint case, was, on its face, alegally correct and entirely defensible expert assessment. After all, theNLRB had vigorously prosecuted the case up to and including its effortsto secure a district court injunction. The district court and the ALJ, fortheir part, were enforcing labor laws that have systematically andincreasingly expanded the realm of employer business prerogatives andof unreviewable discretion in making "core entrepreneurial decisions"such as whether to close or relocate a plant - regardless of the foresee-able and profoundly negative impact of such decisions on union organiz-ing and collective bargaining.2"' The fundamental un/fairness of U.S.labor laws is, however, simply not an issue relevant to the resolution of alabor dispute under the NAFTA labor side accord. The only issue thereis whether the U.S. government enforced them properly, and that, there-fore, was the only issue Professor Corrada was called to address.

Read, however and once again, in tandem with Professor Romero'sanalysis of the lack of enforcement that makes the employment ofundocumented workers a low-risk white collar crime, these two essaysreveal the many and profound inadequacies of domestic and interna-tional labor law regimes. Not only are domestic labor law violationsroutinely unenforced - even when enforced, these laws fail to establisha fair and just framework for preventing the exploitation of labor and theexpropriation of the real value it produces. This is precisely because thehyper-technicalities, of which Professor Corrada writes, are simply the

210. See, e.g., Textile Workers Union of America v. Darlington Manufacturing Co. 390 U.S.263 (1965) (plant closings are matters peculiarly within management prerogative requiring proofof discriminatory intent rather than balancing test); see generally Francis Lee Ansley, StandingRusty and Rolling Empty: Law, Poverty and America's Eroding Industrial Base, 81 GEO. L.J.1757 (1993) (analyzing doctrinal devolution expanding scope of employer unilateral control over"core entrepreneurial business decisions"- such as whether to sell, close or relocate a business).

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masks that hide the asymmetrical power relations these anti-labor lawsand interpretative rulings are designed to institutionalize, preserve andenforce. The resulting consequences are well documented in ProfessorCameron's essay linking the decline in union organization to the increas-ing impoverishment of labor and the simultaneous increase in businessprofitability.

Focusing specifically on Los Angeles County, Professor Cameronnotes that in communities experiencing 20% or higher poverty rates,"over 15,000 manufacturing firms were generating annual revenues ofover $54 billion, due largely to the low-wage labor of 357,000 Latinoemployees. 21 Moreover, three enormous construction projects, totaling12-14.5 billion dollars in investment, are currently in the works for theregion. Professor Cameron asks whether anything could be done to helpLatina/o workers share more equitably in this enormous wealth. Cer-tainly, he is right to suggest that a larger share of the value their laborproduces would go a long way toward ending, or at least substantiallymitigating, the destitution that keeps so many Latinas/os at the marginsof the social and political life of this country. This is just as surely cer-tain as the fact that if poor immigrant Latina domestic servants werepaid the fair "market value" of their labor in upper-income households,they would make enough money to lift themselves and their families outof "the culture of poverty" and criminality they purportedly are so wontto inhabit. Certainly, Professor Cameron is also right to suggest thatsecuring a fair and equitable share of the value Latina/o workers producedepends ultimately on Latina/o self-determination through collectiveaction and solidarity. No employer, union boss, labor board, AU, ordistrict court is going to solve the problem. Only the concerted actionand mutual assistance of Latina/o workers will do the job.2t 2

In this vein, Professor Cameron's essay reviews a number of recentexamples of successful union activity by Latina/o workers. His thesis isthat the future of Latina/o workers and the American labor movementare intricately interconnected. Just as the increasing "Latinization" ofthe U.S. workforce makes Latina/o organizing power an importantresource for revitalizing the American labor movement, the significantwage gaps between union and nonunion jobs, particularly when ana-lyzed by race and ethnicity, make it clear that Latinas/os have a lot togain from unionization. Professor Cameron also offers a valuable analy-sis of the kinds of collective action and strategies most likely to work,

211. Cameron, supra note 205, at 1099.212. See, e.g., Mary Garcia Castro, What is Bought and Solid in Domestic Service? The Case

ofBogotd: A Critical Review, in MUCHACHAS No MORE 105-26 (Elsa M. Chaney & Mary GarciaCastro eds., 1989) (recounting the struggle to gain legal recognition for SINTRASEDOM, adomestic workers union in Colombia).

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for example, strategies involving non-strike alternatives - like corpo-rate campaigns and community based boycotts - and, not surprisingly,strategies that do not depend or rely on the vindication of worker rightsthrough legal process.

III. MAPPING THE INTELLECTUAL AND POLITICAL FOUNDATIONS AND

FUTURE TRAJECTORIES OF LATCRIT THEORY

AND COMMUNITY

The six essays in Part III appropriately close the LATCRIT III sym-posium by raising important questions about the purpose, history andfuture trajectories of the LatCrit project. 21 3 These essays reflect the richand varied intellectual heritage of the many different scholars and activ-ists who have committed their energies to finding, or planting, theirroots in the LatCrit community. The unprecedented and rapid expansionof LatCrit discourse over the last three years reflect the synergiesembedded in these diverse perspectives and constitute the substantialpay-offs of our concerted, self-conscious and collective efforts to releasethese synergies through respectful and inclusive intergroup discoursebased on our shared commitment to an anti-essentialist vision of sub-stantive justice. At the same time, the rapid expansion and many diver-sities of position and perspective coalescing in the LatCrit movementraise substantial questions about the future trajectories and sustained via-bility of this imagined, and still very young, community of scholars andactivists.

To my mind, that future depends, both theoretically and politically,on the degree to which the LatCrit community is able to forge a commonconsciousness and generate a shared discourse for articulating and mani-festing, in concrete ways, a new vision of the relationship between theuniversal and the particular. It depends, ultimately and in other words,on the degree to which each of us is able to see the many different waysin which the relationship between the LatCrit community and the manyparticularities of which it is composed and into which it might at anypoint fracture - is not a relationship between "the universal and theparticular," but rather is, at every moment and in every instance, a rela-

213. Margaret E. Montoya, LatCrit Theory: Mapping Its Intellectual and PoliticalFoundations and Future Self-Critical Directions, 53 U. MIAMI L. REV. 1119 (1999) [hereinafterMontoya, LatCrit Foundations]; Kevin Johnson & George Martfnez, Crossover Dreams: TheRoots of LatCrit Theory in Chicanalo Studies Activism and Scholarship, 53 U. MIAMI L. REV.1143 (1999); Mutua, supra note 8; Tayyab Mahmud, Colonialism and Modern Constructions ofRace: A Preliminary Inquiry, 53 U. MIAMI L. REV. 1219 (1999); Phillips, supra note 7; VictoriaOrtiz & Jennifer Elrod, Reflections of LatCrit III: Finding "Family," 53 U. MIAMI L. REV. 1257(1999).

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tionship of the universal to itself.2"4 What this means, in effect, is thatthe challenge we confront, directly and immediately over the next fewyears, is a challenge that most of us cannot even really imagine. This is,in no small part, because there are simply no words, no readily accessi-ble sound-bites, no immediately obvious and easily recognized formula-tions that convey the conceptual implications, political parameters,ethical substance and practical consequences, as yet to be manifested inand as - an anti-essentialist vision of human interconnection.215 Notonly are we challenged to imagine the ineffable and make manifest theunimaginable, but to do so concretely and effectively, - not at someunspecified time in some distant and abstract future, but rather - in thehere and now of this moment, as it reflects itself in our collective effortsto further the objectives and foster the growth of a particular and histori-cally contingent group of scholars and activists, who have chosen tocoalesce around this imagined community and its aspirations for a newway of seeing and being in the world.

It is with these thoughts in mind that I take up the last six essays ofthe LATCRIT III symposium. The first section focuses on the theoreticaldimensions and directions of the LatCrit project as reflected in theseparticular essays. The second section takes up the practical challengesinvolved in ensuring the continued institutional and programmaticevolution of the LatCrit project.

A. Of Intellectual Debts, Theoretical Directions and the Challengeof Anti-Essentialism

From its title, the opening essay by Professors Johnson and Martf-nez would seem to suggest that the LatCrit movement originates, and isrooted, in the history of Chicana/o activism and scholarship.2"6 A fairand fully informed historical account of the initial beginnings and subse-quent evolution of the series of conferences, publications and relatedevents that now constitute the historical record of the LatCrit projectwould not support such a claim.2 7 However, a close reading of theiressay quickly reveals a very different and altogether appropriatemessage. Indeed, the opening paragraphs of their essay make it quiteclear that Professors Johnson and Martfnez are not claiming that the Lat-Crit movement is, in fact, historically rooted in Chicana/o studies. Notonly do they acknowledge the central importance LatCrit theory has,

214. See, e.g., supra notes 104 & 109 and accompanying text.215. See, e.g., supra notes 201-03 and accompanying text.216. See Johnson & Martfnez, supra note 213.217. See, e.g., Valdes, "OutCrit" Theories, supra note 7 (recounting relationship between CRT

workshop and emergence of the LatCrit movement); see also Philips, supra note 7 (same).

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since its inception, accorded the project of promoting a discourse andpolitics of pan-ethnic solidarity among Latinas/os, but the recorded his-tory, thus far developed, unequivocally illustrates the degree to whichLatCrit theory has also, from its inception, aspired to articulate an inclu-sive anti-essentialist politics of intergroup justice and solidarity that goesfar beyond the politics of Latina/o pan-ethnicity.2t 8

Rather, Professors Johnson and Martfnez's claim, as I understand it,is that LatCrit theory should be rooted in Chicana/o studies or, moreprecisely, that LatCrit scholars should view the long history of Chicana/o activism and scholarship as a rich resource worth further study andserious engagement. It is to this end that they append the bibliography ofChicana/o history compiled by Professor Dennis Valdes, and it is in thisrespect that their claims are entirely appropriate and consistent with thehistorical development and the theoretical and political aspirations of theLatCrit project.

LatCrit scholars should indeed study and learn from the significantbody of scholarship and history of activism reflected in and recorded bya long tradition of Chicana/o studies. The particular perspectives andexperiences of Chicanas/os are as central to the LatCrit project as theperspectives and experiences of any other multidimensional and inter-sectional collective political identity group committed to the struggleagainst white supremacy and the articulation of a substantive vision andpolitical practice of social justice and solidarity. Only an unfortunateregression to the failed politics and limited consciousness of an ethnic orracial essentialism would view Professor Johnson's and Martfnez's callfor attention to the particularities of Chicana/o histories and experienceas a threat to the LatCrit project. As Professor Roberts noted in her owncontribution to this symposium, an anti-essentialist commitment to anti-subordination politics does not mean a commitment to an abstract uni-versalism stripped forever of any particular content.2 9 It is, instead, acommitment to see and respect the universal claims of justice and dig-nity reflected in and asserted by every particularity, as well as by themultidimensional and intersectional identities that oftentimes are sup-

218. These theoretical and political aspirations have been substantially enriched by the activeand continuous participation of a highly diverse and extraordinarily talented assortment ofAPACrit scholars, RaceCrits, QueerCrits and other OutCrit scholars. See, e.g., Aoki, supra note169, at 969 (noting extent of APACrit participation in LatCrit conferences and community); Culp,supra note 45 (reflecting on relevance of LatCrit project to African Americans); Barbara J. Cox,Coalescing Communities, Discourses and Practices: Synergies in the Anti-Subordination Project,2 HARV. LATINo L. REV. 473 (1997) (reflecting on relevance of LatCrit project to white lesbians);Stephanie M. Wildman, Reflections on Whiteness & Latinalo Critical Theory, 2 HARV. LATINO L.REV. 307 (1997) (reflecting on significance of LatCrit project from a white critical feministperspective).

219. See, supra note 109 and accompanying text.

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pressed within each particularity.2"'What this means, more concretely, is that Professors Johnson and

Martfnez are right on point when they assert the need for a distinctiveemphasis on the particularities on Chicana/o perspectives and exper-iences, both within and beyond the institutional and programmaticparameters of the LatCrit project. They are also right to suggest thatChicanalo Studies and LatCrit theory may ultimately converge if, and as,Chicana/o Studies become more inclusive and LatCrit theory continuesto encourage a theoretical and political attention to the particularities ofsubordination experienced by the many different Outgroups that havecoalesced in the LatCrit movement.22' LATCRIT III sought to operation-alize precisely this theoretical and political commitment to addressingthe particularities of subordination by self-consciously and intentionallyorganizing the BlackCrit focus group discussion as a programmaticevent through which a tradition of "rotating centers" might be defini-tively launched and effectively institutionalized in the organization ofLatCrit conferences.222 Within this context, a Chicana/o Studies focusgroup discussion would not be difficult to imagine or to organize for afuture LatCrit conference.

Conversely, of course, Chicana/o activists might likewise effectuateand expand upon Professors Johnson's and Martfnez's call for attentionto and respect for Chicana/o particularities, for example, by centeringthe experiences and perspectives and listening to the stories of Chicanas/os, who have experienced Chicana/o activism from positions locatedoutside the parameters of identity and relations of solidarity defined anddelimited by Chicana/o intellectual and political elites. 223 Beyond that,Chicana/o Studies activists and scholars might, as Professors Johnsonand Martfnez suggest, invite the comments and perspectives of non-Chicanalo Latinas/os, who share their commitment to an anti-subordina-tion social justice agenda. Making these and other similar moves mightindeed produce the ultimate convergence of Chicana/o Studies and the

220. See Iglesias & Valdes, supra note 2, at 556-57 (urging LatCrit scholars to "avoid theessentialist tendency to seek universal truths in generalities and abstractions, rather than seekinguniversal liberation in and through the material, though limited, transformation of the particularand contingent"); see also, e.g., Iglesias, Structures of Subordination, supra note 5 (criticizingdifferent ways in which intersectional particularity of women of color is oftentimes suppressed inthe constitution of class, race and gender based collectivities).

221. Johnson & Martfnez, supra note 213, at 1157 (noting that "[u]ltimately, Chicana/o Studiesand LatCrit theory may move in opposite directions- with Chicana/o Studies becoming moreinclusive and LatCrit theory allowing for focused inquiry when appropriate").

222. See supra notes 105-17 and accompanying text (discussing original purpose and intentbehind the BlackCrit focus group discussion and controversies it generated at LATCRIT IlI).

223. See, e.g., Montoya, LatCrit Foundations, supra note 213, at Part III (reporting interviewswith two Chicana scholars about their experiences as women within the National Association forChicana/Chicano Studies).

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anti-essentialist, anti-subordination agenda that, thus far, has definedLatCrit theory as the collective and collaborative project of a diversegroup of critical scholars and activists.

In this vein, the essays by Professors Mutua and Mahmud offervery different, but equally appropriate, reference points for the futuredevelopment of LatCrit theory. Professor Mutua draws on her exper-iences at LATCRIT III, and particularly her reflections on the BlackCritfocus group featured at the conference, in order to develop a deeplymoving analysis and theoretically sophisticated framework for compar-ing the racialization of Latinas/os and Blacks. Professor Mahmud'sessay, by contrast, draws upon, and introduces for the first time ever in aLatCrit symposium, the rich discourse of post-colonial theory and schol-arship. Both essays acknowledge and explore the broader politicalimplications of the fact that white supremacy operates through the ideo-logical articulation and legal machinery of multiple racial systems. Bothessays thus call upon LatCrit scholars to focus attention and deepen ourcomparative analysis of the various and varied modalities through whichthese different racial systems produce the subordination of peoples ofcolor, both within and beyond the United States.

Professor Mutua's immediate objective is to articulate a theoreticalframework that can effectively ensure that the LatCrit practice of "rotat-ing centers" will trigger meaningful substantive analysis of the differentways in which white supremacy configures relations of relative privilegeand oppression among different non-white groups and the intergrouprivalries that are thereby activated - as much by an uncritical embraceof the privileges conferred on one's own group, at the expense ofanother - as by an uncritical emphasis on the oppression endured byone's own group, but not the other. Focusing specifically on the inter-group tensions between Blacks and Latinas/os, Professor Mutua showshow the notion of "shifting bottoms" provides the necessary theoreticalframework for linking the practice of "rotating centers" to a careful andcritical analysis of the different racial systems through which Blacks andLatinas/os are relegated to their respective "bottoms." Once these differ-ent racial systems are identified and deconstructed, LatCrit scholars willbe better able to understand the many obstacles confronting our hopes ofachieving genuine intergroup solidarity and justice. These hopes con-front profound challenges because Latinas/os, Blacks and Asians areprivileged and oppressed by different racial systems. Dismantling oneracial system, will not necessarily dismantle the others. On the contrary,it may actually reinscribe the remaining systems and enable their morevirulent entrenchment in American society. Thus non-white groups arereally and always potentially in conflict - absent a genuine and self-

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conscious commitment to anti-essentialist intergroup justice. 24

To this end, Professor Mutua's analysis makes three distinct, yetinterconnected, theoretical moves of particular salience to the futuredevelopment of LatCrit theory. The first is to recognize that the practiceof "rotating centers" is not about "celebrating diversity." LatCritorganizers want to institutionalize the practice of rotating centersbecause it offers a valuable lens through which to examine, among otherthings, the different ways in which white supremacy configures relationsof privilege and subordination within and between non-white groups.By articulating the notion of "shifting bottoms" Professor Mutua offers avaluable guidepost for deciding where the center should rotate next. Thisis because, as her analysis suggests, the practice of rotating centers willmaintain its critical edge and effectuate its anti-subordination objectivesonly so long as it remains relentlessly committed to seeking and assert-ing the perspectives of those at the bottom of any particular context inwhich white supremacy is present and operative.225

Professor Mutua's second move links the notion of "shifting bot-toms" to a detailed and comparative analysis of the different racial sys-tems operating in the United States. Through a detailed analysis of thesedifferent systems, Professor Mutua makes a compelling case for con-cluding that Blacks, Asians and Latinas/os are racialized in differentways - such that Blacks are raced as "colored," Asians are raced as"foreign," and "Latino/as when they are not raced as black or white are'raced' as hybrid (being "raced" both as partially foreign and partiallycolored in a way that racializes their ethnicity and many of its compo-nents.)"2 26 These different racial systems structure intergroup relationsin ways that produce "shifting bottoms" between Blacks, Asians andLatinas/os, so that "different faces appear at the bottom of the welldepending on the issue analyzed. '227 Thus, while (some) Latinas/osmay be relatively privileged by the "racial mobility" of putative white-ness in the racial system that marks Blacks as colored, (some) Blacksmay be relatively privileged by the presumption of an American nationaland cultural identity in the racial system that marks Latinas/os as hybridsand foreigners.

Her third and final move links the intergroup tensions betweenBlacks and Latinas/os, over such issues as language rights, immigration

224. See, e.g., supra notes 46-55 and accompany text (discussing intergroup tensions overracially restrictive immigration policies).

225. See, e.g., Iglesias, Out of the Shadows, supra note 30, at 374-75 (noting how exclusion ofJapanese Latin-Americans from 1998 reparations paid by U.S. government to Japanese-AmericanWorld War II internees reveals a "bottom" not otherwise evident).

226. Mutua, supra note 8, at 1207.227. Id. at 1178.

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policies and affirmative action, to the shifting configurations of privilegeand oppression created by these different racial systems. The aspirationunderlying the theory and practice of coalitional politics has repeatedlybeen cast as a collective struggle to move beyond the divide and conquerdynamics of inter-group competition within white supremacy to a col-laborative project aimed, instead, at eliminating white supremacythrough a politics of intergroup solidarity and a commitment to inter-group justice. Professor Mutua's detailed analysis of the different racialsystems organizing Black and Latina/o subordination furthers this pro-ject by revealing how tensions between Blacks and Latinas/os reflectthe different configurations of privilege and oppression visited uponthese different groups by the particular dynamics of different racial sys-tems. Even more importantly, it clearly and powerfully drives home thepoint that achieving intergroup justice is not simply a matter of eliminat-ing oppression, but also of giving up privilege. This means that eachgroup will have to confront and foreswear the privileges conferred onthem by the racial systems that oppress groups other than themselves -

if there is ever to be genuine solidarity based on a shared commitment toobjective justice. 28

At the same time, however, it is important to recognize the limita-tions of Professor Mutua's theoretical framework - not so as to under-mine or discount the substantial advances it makes in the articulation ofLatCrit coalitional theory, but rather so as to mark future directions forLatCrit analysis. More specifically, I wonder how the experiences ofBlack Haitians, and other immigrant Black identities would be mappedwithin and across the various racial systems delimited by ProfessorMutua's framework.229 More generally, I wonder what focusing specifi-cally on marginalized and intersectional identities of Black Latinas/os,Black Asians, Asian Latinas/os and so on and so forth, would teach usabout the interconnections and disjunctures between the various racialsystems and other racial systems, we have yet to identify and decon-struct. Indeed, in this respect, Professor Mahmud's essay closes thissection as if by design.

Focusing specifically on the various racial systems constructed inand through the British colonial project in India, Professor Mahmudillustrates the tremendous mileage to be gained from of a serious LatCritencounter with post-colonial theory and discourse. Like ProfessorMutua, his essay offers a detailed analysis of the discourses and prac-tices through which different racial systems were constructed in the past

228. See, e.g., Iglesias, Structures of Subordination, supra note 5 (solidarity must be based onjustice, not sentimental rhetoric).

229. See, e.g., supra notes 46-55 and accompanying text.

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and are reflected in the present conflicts and tensions among differentracialized groups. By locating this analysis in the particularities ofEuropean colonialism, Professor Mahmud provides a valuable frame-work for expanding the critical analysis of racialization beyond the terri-torial boundaries, cultural ideologies and domestic concerns of theUnited States. There is no question that his essay marks a future trajec-tory for LatCrit theory.

B. Institutionalizing Solidarity and Practicing Mutual Recognition

The cluster afterword submitted by Professor Montoya in conjunc-tion with her cluster introduction, as well as the essays by ProfessorPhillips and by Professors Ortiz and Elrod provide an appropriate occa-sion to shift the focus of attention from the theoretical foundations andfuture trajectories of LatCrit theory to the more concrete and practicalchallenges of ensuring the continued institutional and programmaticevolution of the LatCrit project. Some of the challenges thus far con-fronted, as well as the various strategies LatCrit organizers have imple-mented to meet these challenges, are detailed in Professor Valdes'Afterword.2 30 Nevertheless, these last three essays each raise importantissues concerning (1) the internal dynamics, historical development andfuture evolution of LatCrit conferences and the organizational practicesand structures needed to sustain this movement; 231 (2) the relationshipbetween LatCrit and other networks and organizations of critical schol-ars;2

12 and (3) the overarching necessity of ensuring that these concernsare mediated in ways that preserve and enhance a common ethic ofauthentic human sharing, inclusivity and connection. This last point iskey. The LatCrit community can and should continue to grow andexpand, even as we continue also, rigorously and honestly, to exploreour substantive differences of position and perspective in the spirit andexpectation of lively and lasting friendship based on a shared commit-ment to an anti-essentialist anti-subordination vision and politics. 2 33

To these ends, Professor Montoya's cluster afterword featuresinterviews with two Chicana scholars involved in the National Associa-tion for Chicana/Chicano Studies. Through a candid and detailed narra-tive of the problems confronted in that particular context, theseinterviews offer valuable insights into the difficulties any collective pro-ject can eventually encounter as its participants confront the conse-quences of their own success. One such consequence, noted in these

230. Valdes, "OutCrit" Theories, supra note 7.231. Montoya, LatCrit Foundations, supra note 213.232. Phillips, supra note 7.233. Ortiz & Elrod, Finding "Family," supra note 213.

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interviews, is the activation of an all-too-human tendency to abandon theethic of mutual recognition and the aspirations it embodies, and tojockey instead for positions of individual prominence, whether real orimagined. This cannot be allowed to happen again. Too much is at stakein the here and now of this moment of retrenchment and hostility to thecause of social justice and genuine human interconnection.234

Operationalizing an ethic of mutual recognition, in this context,means recognizing the efforts and contributions of particular individuals,rather than attributing current collective achievements to impersonal his-torical forces or to the heroes (or heroines) of a distant past. Thoughthere can be no question that the LatCrit movement draws its energy andsubstantive value from the many scholars, who have chosen to find, or toplant, their roots in the LatCrit community, it is also true that the organi-zation of appropriate venues, the construction of appropriate contexts forperforming community and producing a collective learning process andthe negotiation of publication commitments that enable these efforts tobe recorded and broadly disseminated do not happen automatically with-out the efforts and energy of particular individuals, who at specificpoints in time, take up the burdens and challenges of creating the oppor-tunities that enable community. The history of these efforts in the devel-opment of LatCrit theory has yet to be told. As Professor Montoya'safterword suggests, much could be learned from the telling. That his-tory, in its full detail, has much to teach about the meaning and value ofperseverence, solidarity and intellectual, professional and personal gen-erosity. That history, in its full detail, will have to await anothermoment and venue, but the lessons embedded in Professor Montoya'scluster afterword underscore the necessity and value of recorded his-

23-tory. 23 With that in mind, a few notes for the record are highly in order.Though the future of the LatCrit movement has yet to unfold, its

history began, without question or doubt, in the Critical Race TheoryWorkshop. It began there because, in its most proximate and concreteform, LatCrit began with the vision and efforts of my friend and col-league Francisco Valdes. That vision is reflected in Frank's

234. For a critical discussion of legal scholars and scholarships in this time of backlashlawmaking, see Francisco Valdes, Beyond Sexual Orientation in Queer Legal Theory:Majoritarianism, Multidimensionality, and Responsibility in Social Justice Scholarship, or LegalScholars as Cultural Warriors, 75 DENv. U. L. REv. 1409 (1998) (urging progressive legalscholars to use our institutional and intellectual positions to blunt the drive to retrenchment).

235. See Montoya, LatCrit Foundations, supra note 213, at 1135 (quoting Cordelia Candelaria:"Many of the early pioneers in Chicana/o studies have been so used to rolling up our sleeves andjust doing what needed to be done without chronicling the process. We just move on to otherprojects. History is lost is one unfortunate consequence. Another is that later on the history issometimes re-written in terms of making certain actors look good in ways that are totallyunsupported by the facts.").

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FOREWORD

Afterword, 36 but his many efforts on behalf of the LatCrit communityare not. From the initial gathering of law professors which produced thefirst ever Colloquium seeking to locate Latinas/os in the discourse ofCritical Race Theory and, in doing so, gave birth to the "LatCrit" move-ment,2 37 and ultimately to this LATCRIT III conference, Frank's efforts tobuild an inclusive community of scholars and activists, to promote atheoretically sophisticated and analytically rigorous anti-essentialist crit-ical legal discourse and, above all, to combat the marginalization ofLatina/o communities in American legal culture have been a drivingforce behind, and an unselfish source of energy and practical assistanceto, the organization of LatCrit conferences, the publication of LatCritscholarship and the consolidation of the LatCrit community. To locatethe roots of LatCrit theory in any other venue, history or project, withoutaccounting for the efforts of this particular man and the immediate con-text that inspired these efforts, would be an unfortunate distortion of theunrecorded history of the LatCrit movement.

Just as Professor Montoya's cluster afterword counsels LatCritorganizers to negotiate the future growth and the institutionalization ofstructures and procedures for the LatCrit project with care and fidelity tothe ethic of mutual recognition, the commitment to unequivocal inclu-siveness and the aspirations of collective solidarity and transformativesocial justice praxis that initially gave it birth, Professor Phillips's con-tribution counsels LatCrit organizers and scholars to attend to the needsand concerns of other networks and organizations of critical legal schol-ars. Whether her institutional proposal to coordinate LatCrit confer-ences and Critical Race Theory Workshops through an every-other-yearrotation, or some other appropriate variation, is ultimately adopted, theobjectives, concerns and aspirations that inform her proposal warrantserious LatCrit attention and consideration. Working out the program-matic and institutional details of the relationship between LatCrit confer-ences and activities and the Critical Race Theory Workshops, as well asthe details of LatCrit participation in venues like APACrit conferences,Law and Society, People of Color Conferences, the NAIL and TWAILnetworks focusing on New and Third World Approaches to InternationalLaw, INTEL's International Network on Transformative Employment &Labor Law and the Critical Legal Studies Network, to name but a few,are pending matters of increasing importance. Ultimately, taking seri-ously the commitment to social transformation through law means tak-

236. See Valdes, "OutCrit Theories," supra note 7.237. See Colloquium, Representing Latinalo Communities: Critical Race Theory and

Practice, supra note 1.

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ing seriously the coordinated synergies that only our collaborativeefforts can produce.

Finally, the essay by Professors Ortiz and Elrod provides a vividimage of the community spirit, collegiality and cultural ethos the LatCritmovement must not ever lose. Though the LatCrit project aspires to theserious objective of producing transformative anti-essentialist legal the-ory and praxis, it aspires also to the realization of the human need forgenuine community, solidarity and friendship. Whether LatCrit confer-ences and activities will continue to provide an intellectual and politicalhome for scholars and activists committed to the project of social justicedepends on the degree to which we continue to structure our gatheringsas spaces where the personal and professional are equally valued andaccommodated.

CONCLUSION

LATCRIT III undoubtedly marked a watershed event in the evolu-tion of the LatCrit movement, both as the most recent intervention inoutsider jurisprudence and as a community of scholars and activists.This Foreword has sought, in a caring, careful and analytically rigorousmanner, to highlight the advances and engage the problems embedded inthe essays that now constitute the only record of this wonderful event.Heeding prior calls and applying the methodologies advocated in earlierLatCrit scholarship, this Foreword has worked to situate the contribu-tions of this symposium within the broader discursive background thathas already been developed through substantial efforts, and at great cost,by other critical scholars. 238 This positioning, as previously explainedand once again repeated, "requires a broad learning and caring embraceof outsider jurisprudence and, in particular, of the lessons and limits tobe drawn from its experience, its substance and its methods. 239 It alsocounsels LatCrit scholars to recognize the importance of critical engage-ment and mutual recognition. Through our critical and focused engage-ment in each other's work and ideas, we will ourselves, growintellectually and politically, even as we foster each other's growth anddevelopment. Through our commitment to mutual recognition, we willpromote the dissemination of LatCrit anti-essentialist, anti-subordinationtheory and, thereby - with a little luck and a lot of hard work - triggerthe paradigm shifts that are imperative for the 2 1st century. The future isas bright as we make it together.

238. Iglesias & Valdes, supra note 2, at 584.239. Id.

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